An email from Charter/Spectrum announcing minor speed upgrades. (Image courtesy: pspfreak)

Former Time Warner Cable customers that never received Maxx upgrades are now getting a minor consolation prize from Charter Communications: a minor broadband speed boost at no additional charge.

Customers eventually receive an email message from Charter/Spectrum advising them of the upgrade. For Standard Internet customers, the email reads:

Dear Valued Customer,

We just made your fast Internet speeds even faster. And the best part is, you don’t have to do a thing.

We know that today there is more to see, learn, play, share and do online than ever before. That means more streaming video, more music and movie downloads, more photo sharing and more gaming. You have more devices in your home than ever before, from laptops to game consoles, e-readers to smartphones, which means you need more speed so everyone can do what they need to, and all at the same time if they want to. That’s why we have increased your Internet speeds from 15Mbps to 20Mbps.

This speed increase for our customers is just our way of saying thanks. Enjoy your faster speeds!

Customers in western New York were upgraded over the past weekend, while some others have quietly been getting upgrades over the last two weeks. At press time, we have confirmed two tiers have been upgraded, but others may have as well. Customers need to disconnect the power cable from their modem for 10 seconds and plug it back in to get the new speeds:

• Time Warner Cable Standard Internet: Was 15Mbps, now 20Mbps. (Speeds are overprovisioned and may report somewhat faster during speed tests).
• Time Warner Cable Ultimate Internet: Was 50Mbps, now 60Mbps. (Speeds are overprovisioned and generally report 70/6Mbps during speed tests).

Stop the Cap! reader Howard in Albany, N.Y. reported his area was upgraded over the weekend, and we can confirm customers in the Rochester/Finger Lakes region in western New York are now also getting the higher speeds.

Legacy Time Warner Cable customers can report their experiences in the comment section. We’d be particularly interested in knowing if these upgrades also happened for Turbo and Extreme customers.

Charter Communications is facing a second lawsuit related to false advertising about its ability to provide fast internet service and allegations the company knowingly supplied customers with deficient equipment.

Hart et al. v. Charter Communications Inc., is seeking certification as a nationwide class action from a judge in the U.S. District Court for the Central District of California.

The suit claims that Charter’s subsidiary Time Warner Cable purposely leased out modems and wireless routers it knew were incapable of achieving Time Warner Cable Maxx broadband speeds, consistently oversold its broadband network — resulting in slower internet speeds and performance than the company advertised, and raised customers’ bills without adequate notice.

The California lawsuit closely mirrors one filed in February by New York Attorney General Eric Schneiderman, and focuses on similar claims that Charter is engaged in “false representations and other wrongful business practices.”

The complaint claims:

• The company willfully and intentionally advertised internet service it could not provide, claiming customers would receive internet service that was “fast” with “no buffering,” “no slowdowns,” “no lag,” “without interruptions,” “without downtime,” and “without the wait.”
• Charter leased older generation modems and wireless routers to many of their customers that were incapable of supporting the promised internet speeds. Older technology modems could not provide the full benefit of Time Warner Cable Maxx speeds of 100-300Mbps, and company-provided network gateways delivered Wi-Fi service at speeds considerably lower than advertised.
• Charter regularly failed to manage their network in a manner that would give customers consistent broadband speeds. Instead, “Defendants included too many subscribers in the same service group and provided too few channels for such subscriber, thus causing an internet ‘traffic jam’ (particularly during peak hours) that slowed every subscriber’s connection to speeds substantially below what was promised and paid-for. Indeed, even when consumers resorted to using wired connections, their Internet speeds still fell short of the promised speeds.”
• Defendants also have adopted an unlawful and unfair practice of adding new fees or other charges to consumers’ bills without adequate notice and outside of the terms promised upon sign-up. In 2016, one customer signed up for a promotional “Spectrum Internet with Wi-Fi” plan with a fixed rate of $64.99 and a $10.00 “Promotional Discount,” making her plan cost a total of $54.99 per month. This amount was reflected in her February 2017 bill. However, on her March 2017 bill, the customer was automatically charged $59.99, a $5.00 increase of which she was not given adequate notice and which was improperly charged to her credit card automatically.

The lawyers bringing the case propose to include as class members anyone who purchased internet service from Time Warner Cable/Charter Communications nationwide, those who believed the company’s advertising that claimed speeds were fast and reliable, and customers enrolled in auto-pay who were not properly informed of changes in price or the terms of service. If certified, the potential size of the class action case could involve millions of customers.

Judge Engelmayer

New York Attorney General Eric Schneiderman will have to wait to bring his lawsuit claiming Charter/Spectrum is ripping off New York consumers with false speed claims until the courts can find a judge that isn’t a Charter/Spectrum subscriber.

U.S. District Judge Paul A. Engelmayer recused himself from hearing the case in state court Wednesday because he has a conflict of interest – he’s a Charter/Spectrum customer and could receive monetary damages if the cable company is found culpable.

“I am obligated to recuse,” Judge Engelmayer said, while also apologizing for not doing so earlier. As a former Time Warner Cable customer, he was unfamiliar with the Spectrum brand and only recently realized Charter Communications had acquired Time Warner Cable. “I can barely use a toaster. I have no idea what internet service I subscribe to.”

Charter Communications is trying to get the case heard in a presumably more friendly venue – federal court, and the case is on hold until Schneiderman completes his argument to have the case heard by a New York court. Charter argues that Schneiderman should not be allowed to bring enforcement actions under state law in state courts just because he is dissatisfied with the performance of the FCC.

The New York Attorney General brought the action after allegedly finding extensive evidence Time Warner Cable was not delivering the internet speeds the company promised in its advertising and in some cases left customers with equipment incapable of supporting the higher speeds customers purchased.

If Schneiderman can successfully keep the case in New York, the courts will have to find a judge with Verizon FiOS or no internet at all — a tall order in a state where Charter/Spectrum’s service area covers Buffalo to Manhattan and all points in-between.

The average Charter/Spectrum customer shares their internet connection with up to 499 of their neighbors, according to an admission made today by Charter Communications CEO Thomas Rutledge.

“Our average node size is around 500 homes,” Rutledge told investors on a morning conference call.

According to a lawsuit filed by the New York State Attorney General Eric Schneiderman, from about 2012, Spectrum-TWC’s network across New York typically provided about 304Mbps (8 x 38Mbps channels) of bandwidth to be shared among all the subscribers in a service group. In some areas, this would mean that 300 customers in a node would have around 1Mbps of bandwidth to use if all 300 subscribers used the internet at the same time. Time Warner Cable had begun expanding bandwidth on DOCSIS nodes to 16 channels at the time Charter Communications acquired the company, giving customers shared bandwidth of about 608Mbps.

Remarkably, Rutledge’s admission suggests some Charter customers may be serviced by DOCSIS nodes even more populated than the ones in New York State that regularly failed to deliver advertised internet speeds and prompted the Attorney General to file a lawsuit against Charter.

New York’s lawsuit claimed as of February 2016, the average Time Warner Cable customer in the state shared their connection with about 340 other customers. Information obtained from Time Warner Cable found some nodes with as few as 32 subscribers while the most overcongested had as many as 621 subscribers.

Rutledge’s comments this morning suggest Charter/Spectrum customers may be sharing their connection with up to 499 of their neighbors, making them more likely to experience congestion potentially worse than experienced with Time Warner Cable. Standard internet service from Charter is also much faster than Time Warner Cable’s corresponding Standard plan — 60Mbps vs. 15Mbps, which has the potential to lead to even worse slowdowns if customers use their internet connections at the same time.

Rutledge defended the average node size by claiming Charter has a lot of fiber in its network.

“And we have the ability to take that fiber deeper,” Rutledge said. “We have the ability incrementally to take the network to a passive network and to do that at reasonably efficient capital cost through time and to do that in very targeted ways where we need the capacity. So we’re very comfortable with the extensibility of our network and the ability to put high capacity anywhere in our network.”

Rutledge said node expansions take place through a “market demand driven sort of process.”

“There are bunch of ways you can manage capacity on our network,” Rutledge explained. “We can do what are called virtual node splits. If you clear analog spectrum and go all-digital, [that can create] excess capacity in your network, and [if] you have demand to put more capacity in a node, there [are] two ways of doing it. One way is to physically split a node into a smaller node, which requires the placing of an electronic device in the field, and maybe the extension of some fiber. It depends on how the architecture of that is structured, but it’s relatively inexpensive on a grand scale capital perspective, but a lot more expensive than a digital or virtual node split. And you can do those if you have channel capacity by just recreating additional DOCSIS paths to create a virtual node essentially. And so we manage our network for the future based on the actual load on the network as opposed to some theoretical issue.”

This is part two of a multi-part series examining Time Warner Cable’s internal documents, made partly public as a result of a lawsuit filed by the New York Attorney General. You can read part one here.

In the summer of 2014, Time Warner Cable had a problem. For three years, the Federal Communications Commission had been issuing reports about the quality of broadband service from the nation’s largest internet service providers. The raw data collected by about 800 subscribers of Time Warner Cable who volunteered to participate in the project began to worry executives because it showed their broadband service was oversold in certain large cities and was no longer capable of consistently achieving advertised speeds. Even worse, the company’s congestion problems threatened to lower Time Warner Cable’s internet performance score at the FCC.

Sam Knows (but so does Time Warner Cable): The Not-So-Independent, Not-So-Confidential FCC Speed Test Program

The FCC commissioned a private company – Sam Knows – to distribute modified internet routers to gather data about the internet connections of thousands of volunteers and shared the results with the FCC to incorporate into its Measuring Broadband America program. After the FCC issued its first report in 2011, providers quickly learned the consequences of overpromising and underdelivering when Cablevision was called out for dramatically overselling its broadband service and not delivering the speeds customers paid to receive. While Cablevision executives publicly attacked the FCC speed test program as unreliable and wrong, they also quietly opened the company’s checkbook and spent millions quickly upgrading their facilities. The metric they failed to achieve was the FCC’s 80/80 test: “speed that at least 80% of the subscribers experience at least 80% of the time over peak periods.”

Here is what broadband performance on an oversold broadband service looks like. Notice Cablevision’s 2011 speed ranking plummets during peak usage periods when too many customers are sharing too little available bandwidth.

The incident embarrassed and damaged Cablevision’s reputation, and no cable operator wanted to be the next highlighted company for a public spanking by the FCC.

Time Warner Cable’s “Slow-Motion Train Wreck”

In 2013, a Time Warner Cable executive recognized the company’s practice of limiting company-financed expansion of their upstream connections with the rest of the internet would have serious implications for their own speed test scores, because customers were encountering nightly slowdowns on popular websites like YouTube caused by overcongested connections. Company executives feared customers participating in the Sam Knows/FCC program would soon reveal Time Warner Cable’s internet speeds were beginning to suffer some of the same peak usage problems Cablevision was encountering in 2011. The executive’s solution? Temporarily expand upstream connections just long enough to protect Time Warner Cable’s broadband speed scores:

“Our Sam Knows scores are like watching a slow-motion train wreck. We need to get in front of this. One thing I think we may need to be prepared to do is just give more ports to Cogent during sweeps month [when FCC results are measured for purposes of the MBA report]. We don’t have to make any promises, we just have to make it work temporarily.”

But even tricks like that failed to help Time Warner Cable’s speed scores in New York City, where serious congestion problems were obvious, even as late as last year:

The lawsuit filed by New York’s Attorney General revealed that FCC panelists in New York were getting speeds consistently well below the speeds they paid for, especially those paying for premium speeds:

FCC/Sam Knows Time Warner Cable Maxx Panelists in New York Speed Test Reports:

100Mbps subscribers received 73-87% of advertised speed (<80% advertised speed over six month period)
200Mbps subscribers received 49-58% of advertised speed (<60% advertised speed over six month period)
300Mbps subscribers received 33-52% of advertised speed (<38-74% advertised speed over six month period)

Speed test results showed consistent speed deficiencies between 2013-2016 occuring for many reasons, according to the lawsuit, including customers using outdated, company-supplied cable modems insufficient to support the customer’s speed plan, chronically oversold neighborhood groups that Time Warner Cable did not split or upgrade with additional capacity, and inadequate upstream/backbone connections to properly deliver content originating outside of Time Warner Cable’s own broadband network.

Overprovisioning Your Broadband Speed = “Putting Lipstick on a Pig”

We subscribe to 50/5Mbps service but receive closer to 62/6Mbps because Spectrum/Time Warner Cable overprovisions our service.

Instead of investing adequately in network upgrades and node splits, a July 7, 2014 internal email from Time Warner Cable’s former head of corporate strategy told senior colleagues the best way out of this dilemma was to cheat on the FCC broadband tests:

“We recommend increasing over-provisioning our modem speeds to around 20% to drive our Sam Knows scores >100% and then to market that we deliver more than promised speeds.”

In plain English, Time Warner Cable boosted the maximum allowed speed of each customer by about 20%. As a result, during non-peak usage times customers would find, for example, a plan advertising 50/5Mbps speed now delivered around 60/6Mbps. Although some customers considered overprovisioning a hidden free upgrade, Time Warner Cable’s motives were not altruistic. Because the Sam Knows testing program averages scores received from periodic testing, Time Warner Cable padded the results with higher-than-advertised speeds when their network was not congested, which compensated for the slower speeds and worse performance customers were getting during peak usage times. The lawsuit also alleges the practice helped to hide the abundance of obsolete rented cable modems still in use across Time Warner Cable’s broadband network.

The strategy worked to boost Time Warner Cable’s scores, but only as far as the FCC was concerned. Some customers were still finding their visits to YouTube, Netflix, and other websites littered with buffering problems and degraded resolution videos just about every evening. In 2013, before Time Warner Cable went ahead with its overprovisioning plan, the company’s own network engineers called the practice putting “lipstick on a pig.”

The Attorney General had its own analogy:

Using the highway analogy, Spectrum-TWC’s overprovisioning strategy amounts to allowing cars to go faster than the posted speed limit at certain times to compensate for the fact that often the highway slowed to a crawl. Boosting the average results with outlier results masked the enormous frustration for most subscribers stuck in traffic.

Breaking the FCC’s Rules

The lawsuit also alleges Time Warner Cable broke its own commitment to the FCC in the Code of Conduct it signed as a participant in the FCC’s testing program.

The FCC’s Code of Conduct required Spectrum-TWC to “at all times act in good faith” and not do anything “if the intended consequence of such act or omission is to enhance, degrade or tamper with the results of any test.” Specifically, the Code of Conduct prohibited the company from “modifying or improving services delivered to any class of subscribers” that was not “consistent with normal business practices.”

Stop the Cap! has also learned Time Warner Cable was able to identify each participant of the FCC/Sam Knows Time Warner Cable panel. This allowed the cable company to secretly verify the line quality and equipment in use by each participant, and give extra attention to those customers/volunteers to make sure service was performing as well as possible. In fact, executives instructed customer service representatives to assign FCC panelists “VIP treatment” and “best in class devices” when swapping modems, even as the company continued to supply deficient equipment to other customers who were not FCC panelists.

Still to Come: Playing games with online gamers, company officials tell the truth about bandwidth costs and Net Neutrality, and more….