Shaw's flyer distributed to Novus customers

The Supreme Court of British Columbia has thrown out Novus Entertainment’s 2009 lawsuit against Shaw Cable accusing western Canada’s largest cable operator of predatory pricing and other anti-competitive acts.

Last summer, Stop the Cap! gave considerable attention to the price war that broke out between Novus Entertainment, a fiber provider serving many Vancouver apartment buildings and condos vs. incumbent cable provider Shaw Cable.

Novus, which entered the BC market well after Shaw, faced what it alleged were incidents of fixing prices below cost and false advertising in an effort to drive competition out of the market.

At one point, last summer’s battle dropped prices as low as $30 a month for a package of HD cable, unlimited phone, and 16Mbps broadband service from Shaw.  Novus accused Shaw of recouping their losses in Vancouver from other Shaw cable subscribers across Canada who made up the difference with higher cable rates.

Novus sought relief before The Honourable Mr. Justice Greyell, in the Supreme Court of British Columbia.  Novus argued that under the recently expanded Competition Act, the court could order Shaw to cease unfair competition and face punitive fines for the cable company’s bad behavior.

Novus recited details of the price war:

Commencing February 2009, Shaw began a series of marketing campaigns specifically targeted at Novus’ existing customers in high-rise, multiple-dwelling units (“MDUs”) developments in Vancouver and Burnaby, British Columbia.

In February 2009, Shaw offered very low pricing on its Cable Television Services, Internet, and digital telephone services to certain Novus customers.  Customers were free to take one, two or all three of the services offered.  There were no contracts or commitments required:

• Cable Television Services:  Shaw’s “High-Definition TV” package including over 100 digital and HD channels, plus 1 year free rental of a high-definition personal video recorder (“HDPVR”), free for the first two months, and $9.95 for the next ten months (twelve months in total).
• Digital Telephone:  Shaw’s “Digital Phone Basic” package, which includes local calling and call display, free for the first two months, and $14.95 for the next ten months (twelve months in total).
• High-speed Internet:  Shaw’s “Xtreme-I Internet” package, free for the first two months, and $19.95 for the next ten months (twelve months in total).

In March 2009, Shaw began offering a free HPDVR to keep, plus the first month of service for free, to customers that switch back to Shaw. Customers were only required to commit to six months of pre-authorized payments.

In July 2009, Shaw offered even lower pricing than it marketed in February:

• Cable Television Services:  More than 200 digital channels, including all analogue and digital television channels, 25 high-definition television (“HDTV”) channels, a movie channel package, plus two rental HDTV set-top boxes with personal video recorder (“HPDVR”), free for the first two months, and $9.95 for the next ten months (twelve months in total).
• Digital Telephone:  Shaw’s “Digital Phone” package, including local telephone service, over a dozen calling features including voicemail, call display and call waiting, unlimited calling within Canada and the US, 1,000 International minutes to selected countries per month,”) free for the first two months, and $9.95 for the next ten months (twelve months in total).
• Shaw’s “Xtreme-I” high-speed Internet: with advertised download speeds of up to 16 Mbps, “Powerboost”, 10 personal email addresses and 100 GB monthly data transfer”), free for the first two months, and $9.95 for the next ten months (twelve months in total).

To add insult to injury, according to Novus, Shaw began advertising Internet “now 50 percent faster.”  In Novus’ opinion, the advertising implied Shaw’s Internet service was now 50 percent faster than broadband offered by Novus.

The text from Shaw’s ad read:

Feel the need for extra speed?  Shaw high-speed Internet is now 50% faster that’s fast.  Downloading your favourite music, videogames, and movies will take no time at all.  Plus Shaw high-speed Internet comes loaded with no cost extras like Powerboost, Shaw Secure and much more.  Get Shaw high-speed Internet for the amazing new price of only $19.95 per month for the first three months including modem and installation.  There’s never been a better time to order.  Call 310-Shaw today.

Signs sponsored by Shaw Cable were placed in front of buildings wired by Novus

The decision by Mr. Justice Greyell was carefully watched across Canada as it represented the first test of expanded authority granted by Parliament for courts to impose significant monetary fines against bad actors.  Commentators noted the new authority theoretically granted courts the power to determine anti-competitive activity itself — a power formerly held by Canada’s Competition Tribunal.

Those commentators need not have worried if the BC Supreme Court decision stands intact.

Mr. Justice Greyell dismissed Novus’ claims and ruled that in the absence of a determination of anti-competitive behavior by the Competition Tribunal, the court had no right to declare Shaw guilty of such behavior in the case.

“I conclude that in the absence of an order from the [Competition] Tribunal under s. 79 of the [Competition] Act, those portions of the statement of claim alleging a breach of s. 79 of the Act be struck out,” the chief justice ruled, effectively dismissing Novus’ anti-competitive claims against Shaw.

Mr. Justice Greyell also was unconvinced consumers would be confused by Shaw’s “50 percent faster” advertisement, believing the cable company now delivered faster service than Novus.

“In applying these tests to the ‘Now 50% Faster’ advertisement I am unable to conclude a reasonable person would view the words used as referring to the plaintiff’s business.  I am of the view the interpretation any reasonable person would place on the words is that Shaw is directing the advertisement to its own customers, and anyone else who might be interested, that its services are 50% faster than they used to be.  This fact is made clear by Shaw’s use of the word ‘Now’ – which implies that in the past Shaw’s services were slower and that Shaw has ‘Now’ improved the speed of its services   The advertisement makes no reference to Novus or to any Shaw competitor,” the chief justice ruled.

Novus effectively walks away from the BC Supreme Court empty-handed, and a little lighter in the wallet.  The chief justice also ruled Novus is responsible for Shaw’s legal bills associated with defending itself against Novus’ lawsuit.

[flv width=”630″ height=”375″]http://www.phillipdampier.com/video/Novus – 10 Bucks Too.flv[/flv]

Novus released this video as part of an outreach campaign arguing cable customers across western Canada should qualify for the same incredibly low promotional pricing Vancouver residents pay for Shaw Cable. (2 minutes)

A new report published by the Federal Communications Commission this week finds Americans are being ripped off by their broadband providers who promise speeds 50 percent faster than they actually receive.

In a generically named report, “Broadband Performance,” the FCC finds Americans love spending increasing amounts of time on the Internet, but face providers making bogus marketing claims for speeds they’ll never actually receive.

In 2009, average […] advertised download speeds were 7–8 Mbps, across technologies. However, FCC analysis shows that the median actual speed consumers experienced in the first half of 2009 was roughly 3 Mbps, while the average (mean) actual speed was approximately 4 Mbps. Therefore actual download speeds experienced by U.S. consumers appear to lag advertised speeds by roughly 50%.

[…] The “up to” speed, however, does not provide an accurate measure of likely end-user broadband experience. That experience depends on multiple factors, including the actual speed that consumers realize, taking into account the impact of network congestion; and other metrics like the availability of the network, latency, jitter and packet loss. In other words, consumers need a better, publicly agreed upon measure of broadband performance that reflects the network operation and end-user experience.

No surprises here - the FCC found fiber delivered the fastest broadband speeds with wireless and satellite service delivering the slowest

Providers in several countries have been called to account for marketing claims that never seem to be realized by customers.

For years, providers have relied on the weasel words “up to” to escape charges of outright misrepresentation of their products.  The FCC doesn’t believe the status quo properly informs consumers about true broadband speeds, especially when comparison shopping.

Some of the widest gaps between advertised and actually delivered speeds came from telephone company DSL service.  Many phone companies define their maximum speeds based on theoretical maximums, not the actual average speeds encountered by customers.  While some providers claimed up to 10Mbps service, they only actually delivered up to 3Mbps to many customers.

The report recommends new disclosures, including average actual speeds delivered to customers, what kind of speeds customers can expect during peak usage times, and what speeds consumers will encounter while using certain online applications.

Speeds can make all the difference for certain classes of broadband users, also defined in the FCC report:

➤ Advanced. These consumers use large amounts of data and tend to use the highest quality voice, video, and other cutting-edge applications.

➤ Full media. These consumers are moderately heavy users of broadband and mobile applications, seeking to access high-quality voice, data, graphics, and video communications but, typically not in the most cutting-edge forms.

➤ Emerging multimedia. These consumers utilize some video and graphical content but still see the Internet primarily as a way to communicate and access news and entertainment in a richer format than found in offline content.

➤ Utility. These consumers are largely content to access the Internet for basic news, communication, and basic entertainment.

The New America Foundation thinks the gulf between promises and reality has grown so large, it’s time to bring “The Schumer Box” to broadband.  Named after Sen. Chuck Schumer (D-NY), the “Schumer Box” was made a part of every credit card application and cardholder agreement.  It breaks out in large print fact-based disclosures to consumers about what kind of service and pricing to expect.  The Foundation wants consumers to have truth-in-labeling introduced for Internet users who will be able to comparison shop providers more effectively.

One consumer group wants a credit card-style disclosure of broadband speeds and policies

While the FCC’s findings may not reach the level of credit card-style disclosures, the agency does recognize there is a significant problem with providers misrepresenting their broadband speeds.

The report also found consumers are increasing their amount of monthly usage, often correlated to the speeds they receive.  Those with the fastest broadband accounts consume the most (and typically also pay the most for service).  Those with slower speeds consume less.

That finding supports the contention among many consumer groups that today’s speed-based broadband tiers fairly compensate providers for customer usage.  Those who use the most pay the most for the fastest speeds. Those who use the least pay lower prices for lower speed tiers.

The agency also rated fiber to the home America’s fastest broadband technology, followed by cable broadband, then DSL service, and finally wireless/satellite-delivered service.

Phillip Dampier to Chairman Genachowski - Don't Be Verizon's Sucker

Julius Genachowski was played.

The chairman of the Federal Communications Commission hopefully just learned a valuable lesson about the corporations he’s dealing with.  Big telecom companies will be your friend and working partner until they get close enough to stick you with their knives.

Genachowski got it right in the back, betrayed by the companies he shepherded into secret backroom talks, ostensibly to find a non-regulatory solution to Net Neutrality.  While talks were underway, a few major players were quietly stalling for time to construct their own “private agreement” on Net Neutrality, threatening to up end the FCC’s Net Neutrality agenda into the toilet.  The rest were never really interested in anything less than total capitulation on the concept of Net Neutrality (I’m talking to you, AT&T).

And the merry-go-round goes round and round….

The FCC chairman was outmaneuvered from day one, even as he was willing to ignore his biggest supporters who believed he was honest about an open, pro-consumer FCC.

Stop the Cap! reader Dave noted the secret backroom talks between the bully boys and the FCC chairman’s chief of staff Ed Lazarus had collapsed late last week.  Extraordinary pressure from ordinary Americans helped torpedo those talks, as did the realization some of the participants were dealing behind the backs of their hosts.

Now that Verizon and Google have accomplished their Judas moment, the chairman of the FCC is just a tad angry in the papers:

“Any deal that doesn’t preserve the freedom and openness of the internet for consumers and entrepreneurs will be unacceptable,” Genachowski said at a recent press conference.

Some of Genachowski’s allies at the FCC hinted they were hardly surprised at the developments.

Commissioner Michael J. Copps has been around long enough to know better.  He was skeptical negotiations would deliver more than lip service and he was right.  With today’s announcement of a partnership on policy between Google and Verizon, Copps remained unimpressed, and issued a terse reaction:

“Some will claim this announcement moves the discussion forward. That’s one of its many problems. It is time to move a decision forward—a decision to reassert FCC authority over broadband telecommunications, to guarantee an open Internet now and forever, and to put the interests of consumers in front of the interests of giant corporations.”

Maybe it’s time for Chairman Genachowski to listen more to fellow commissioners like Mr. Copps and less time trying to negotiate with Verizon and AT&T.

It’s near impossible to find a consumer group not on big telecom’s payroll that likes any of these recent developments.  Their consistent message — stop trusting big corporations with America’s Internet future.  Do your job, stand up for Net Neutrality, and don’t cave in.

Public Knowledge: Google Sold You Out

Since late last year, we’ve been pushing the Federal Communications Commission (FCC) to place its authority to protect broadband consumers on firm legal ground. But faced with pressure from the largest cable and telephone companies, the agency has failed to act. Who is filling the void left by the FCC? Some of the world’s largest corporations.

Late last week, news broke that a traffic management agreement had been reached between Google and Verizon. This agreement would, among other things, allow Verizon to prioritize applications and content at whim over its mobile broadband network. In the absence of clear FCC authority, we can expect to see more deals like this in the near term. The largest telephone and cable companies and the largest web companies will carve up the Internet as they see fit, deciding who gets access to the Internet’s fast lane while the rest of us are stuck in the slow lane.

We’ve reached a critical crossroads—the time for FCC action is NOW. Private negotiations with industry players have failed. Public concern has reached a fever pitch. And some of the largest corporations on the web are lining up to put an end to the open Internet as we know it. The course of action couldn’t be more clear: the FCC needs to do the right thing and protect broadband users.

Free Press: Google – Don’t Be Evil

“Google and Verizon can try all they want to disguise this deal as a reasonable path forward, but the simple fact is this framework, if embraced by Congress and the Federal Communications Commission, would transform the free and open Internet into a closed platform like cable television. This is much worse than a business arrangement between two companies. It’s a signed-sealed-and-delivered policy framework with giant loopholes that blesses the carving up of the Internet for a few deep-pocketed Internet companies and carriers.

“If codified, this arrangement will lead to toll booths on the information superhighway. It will lead to outright blocking of applications and content on increasingly popular wireless platforms. It would give companies like Verizon, Comcast and AT&T the right to decide which content will move fast and which should be slowed down. And it will destroy the open Internet as a platform for small business innovation and job creation, cementing companies’, like Google’s, dominant market power online.

“Still worse, this deal proposes to keep the FCC from making rules at all. Instead of an even playing field for everyone, it proposes taking up complaints on a case-by-case basis, or even leaving it up to third-party industry groups to decide what the rules should be. The only good news is that neither of these companies is actually in charge of writing the rules that govern the future of the Internet. That is supposed to be the job of our leaders in Washington.

“Congress and the FCC should reject Verizon and Google’s plans to carve up the Internet for the private benefit of deep-pocketed special interests, and move forward with policies that preserve the open Internet for all. This begins with the FCC reasserting its authority over broadband to ensure it can protect the open Internet and promote universal access to affordable, world-class quality broadband.

“The Internet is one of our nation’s most important resources, and policymakers everywhere should recognize that the future of our innovation economy is far too important to be decided by a backroom deal between industry giants.” — Free Press Political Adviser Joel Kelsey (See more here.)

Newspapers  Say ‘Enough is Enough’

The San Francisco Chronicle

[…]Public interest and consumer groups didn’t feel like they had much of a say in the commission’s discussions, and they surely won’t feel like they had much of a say in whatever proposal Google and Verizon bring to the table. This is a huge problem – the future of the Internet belongs to the public, not just a few companies.

The ideal solution would be for Congress to step in and provide a framework for net neutrality – preferably one that keeps the public interest at heart, not the demands of dominant Internet companies and carriers.

That’s what the commission would prefer. It’s considering getting around the breakdown in negotiations by reclassifying broadband under a more heavily regulated part of telecommunications law, but the large cable and telephone companies will almost certainly sue. Congressional action would prevent this ugly scenario and its uncertain outcome.

And any proposal that Google and Verizon come up with will have to be approved by Congress. It would certainly serve the public interest better if Congress gathered input from more than just two companies and created a proposal of its own.

Unfortunately, Congress hasn’t shown much appetite for net neutrality legislation in the past, and we’re not optimistic about the near-term future. So it’s time for the commission to do the right thing and reclassify broadband.

Yes, that will mean lawsuits. It will mean that net neutrality has a precarious future. But it has a precarious future right now, and the public can’t afford to wait.

The Los Angeles Times

[…]Genachowski is right about the need for enforceable rules that prevent broadband providers from blocking or slowing access to websites and services they don’t favor. So far there have been only a few such incidents on DSL and cable-modem networks. But Internet service providers are itching to create a toll lane to deliver content and services from companies that have the resources to pay for better access to consumers. If that toll lane crowds out the free and open Internet that’s been a breeding ground for innovation and creativity, the whole economy will suffer.

[…]A major problem for the commission is that its authority to adopt such rules isn’t clear. Genachowski had hoped that the talks with Internet service providers and Web companies would yield a consensus on a bill Congress could quickly pass to grant the FCC clear but limited authority over broadband access. The breakdown of those talks complicates matters, and suggests that Genachowski may have to rethink his plan to enforce Net neutrality by bringing 21st century broadband providers under rules originally designed for 20th century telephone services. Whatever route it takes, though, the commission should move now.

[flv width=”480″ height=”380″]http://www.phillipdampier.com/video/Young Turks – Google Verizon Killing Net Neutrality 8-9-10.flv[/flv]

Cenk Uygur of The Young Turks show explains the implications of Google & Verizon’s deal for both progressives and conservatives if big corporations get to take control of America’s Internet.  (6 minutes)

Tim Conway's "Old Man" character from the Carol Burnett Show would be right at home using the Internet in these areas.

Nick Saint at the Business Insider has been sifting through some of the raw data released last week by the Federal Communications Commission regarding broadband service in the United States.  He’s managed to identify the 10 worst counties in America for broadband service based on statistics from 2008.  But two of those probably should have never been on the list.  More on that later.

Harrison County, Mississippi — A single pond in Harrison County is the only known habitat of the critically endangered dusky gopher frog.  It doesn’t have broadband, and neither do most of the residents of this beleaguered part of southern Mississippi.  The cities of Gulfport and Biloxi are in Harrison County, an area torn up by hurricanes from Camille to Katrina.  Now, the beaches are coated in BP oil.  Harrison County can’t get a break. Cable One and AT&T are the primary providers.  Cable One’s dreadful service only reaches well-populated areas and AT&T has taken its sweet time expanding DSL service in the area.

Imperial County, California — The nation’s lettuce basket, Imperial County communities live on a very low fiber-optic diet.  While the soil is rich for crops, the people who plant and harvest them are not.  El Centro, the biggest city, has some broadband available, but with the city having the nation’s highest unemployment rate (27.3 percent), many can’t afford it.  Once in farm country, cable doesn’t offer service and DSL is hard to come by.

Corson County, South Dakota — Representative of the pervasive problem of broadband unavailability on Native American lands, a large part of Corson County includes the Standing Rock Indian Reservation.  Saint notes the FCC found just 12.5 percent of Native Americans subscribe to broadband service, compared to 56 percent of the rest of us.

Ector County, Texas — Odessa’s hometown America-charm was put on display for all to see on NBC’s Friday Night Lights, which celebrated small town high school football.  The reality is less exciting.  Like Harrison County, Ector residents are stuck with Cable One, which loves Internet Overcharging schemes and spied on its Alabama broadband customers.  Good ole AT&T grudgingly provided DSL, if you could get it, until mid-2009 when U-verse finally started to show up.  Now large parts of the county outside of Odessa can’t get that either.

San Juan, Puerto Rico — Usually considered an afterthought by American telecommunications companies, Puerto Rico has long suffered with low quality service.  Caribbean Net News: “Puerto Rico’s broadband penetration rate is unacceptable, with less than 40% of households subscribing to broadband services”, said Carlo Marazzi, President of Critical Hub Networks. “While there are many factors at play, broadband in Puerto Rico is simply too expensive and too slow, when compared to the rest of the nation.  Broadband Internet service in Puerto Rico is 60% more expensive and 78% slower than the United States national median. In a report published this year by the Communication Workers of America (CWA) which ranked broadband speeds in the 50 states, Puerto Rico and the District of Columbia, Puerto Rico was ranked in last place (52nd place).

Jasper County, Missouri — Saint noted 18 percent of Jasper County lives below the poverty line, which is not exactly attractive to broadband investment.  Jasper County’s broadband needs are barely met by a cable provider, AT&T, and for some, an electric utility operating a Wireless ISP, providing service where cable and DSL don’t go.  For Jasper County residents, the challenge can be cost as much as access.

Appomattox County, Virginia — Every student known Appomattox was the last stand of Confederate leader Robert E. Lee during the Civil War.  Today, residents there are worked to their last nerve because they can’t easily obtain high speed Internet.  There is no DSL service from the phone company and only limited cable service.  But at least the county is trying.  Let’s let John Spencer, assistant county administrator, tell you in his own words what Appomattox County is doing to deliver broadband for its 14,000 residents:

Bristol Bay Borough, Alaska — The epitome of rural America, large swaths of Alaska are dependent on subsidies paid from the Universal Service Fund for basic telephone service.  Outside of large cities, cable television is a theory.  Telephone company DSL service and wireless are the predominate broadband technologies in rural, expansive Alaska.  For many areas, both are awful.  Bristol Bay Borough is known as the “Red Salmon Capital of the World,” if only because there are far more salmon than there are fishermen to catch them.  Internet access for many of the area’s 953 residents means a trip to the Martin Monsen Library, which offers free Wi-Fi for limited access. If you want Internet at home, it will cost you plenty:

Talk about bad timing.  Just as the transition between Verizon and Frontier Communications was about to get underway, a fiber cable cut in Virginia June 29th caused a multi-state outage for Frontier DSL’s service.  In downstate New York, tens of thousands of customers lost service.

News of the outage was picked up by the Times Herald-Record, which reported nearly 30,000 customers in Orange and Rockland counties without service from 2-11am.  A Times reader named Steve observed, “I thought this outage was just the typical monthly DSL outage I suffer every month with Frontier. Think service is bad now? God help us when they get their hands on that chunk of Verizon territory. I suspect it will be overwhelming for them, from financial and technical viewpoints.”

Several thousand customers near Rhinebeck and Hopewell Junction were also impacted, according to a story in the Poughkeepsie Journal.  Reader MarienneV noted this wasn’t the first Frontier DSL outage she’s dealt with:

We noticed that there was no Internet at my house at around 5am yesterday. It was after 8pm when we were finally able to get online. This is not the first time it happened either, about a week or two ago Frontier had an outage that lasted at least five hours. Since there is no local television news up here, I felt kind of cut off from the world. I hope the Internet stays on now.

A similar service outage hit Frontier customers in the Middletown area, according to the Mid-Hudson News.

Since the transition, now even former Verizon customers are being exposed to Frontier DSL outages, especially in West Virginia where widespread problems are attracting the attention of the state Public Service Commission.

The Charleston Daily Mail today reports more than 500 customers in Martinsburg alone seem to have had problems with Internet service since Saturday:

The commission, in its May 13 order approving Frontier’s acquisition of Verizon’s landline network, required Frontier to spend millions of dollars to increase broadband deployment and subscriptions in what was Verizon’s service territory. However, the commission does not regulate Internet service.

On Tuesday Doug Stone said he and his brother-in-law, who both live outside of Martinsburg, hadn’t had Internet service since Saturday morning. Stone said a Frontier customer service representative in Texas told him the company had over 500 calls from the Martinsburg area about Internet service.

Tuesday evening Frontier spokeswoman Brigid Smith said, “The outage in Martinsburg seems to be the direct result of faulty workmanship by Verizon two weeks prior to the completion of the acquisition,” and was directly related to Verizon’s movement of a switch from Maryland to West Virginia. She added, “The cooling equipment Verizon installed was insufficient for the additional data equipment associated with this project.

“My partners at Frontier are working incredible hours to make right many things that have been too long ignored,” Smith said.

A Marmet resident who asked to not be identified said Wednesday that she and a friend, who also lives in Marmet, were without Internet service. “They tell us it will be 24 to 48 hours before they fix it,” she said. “I want you to know the problems aren’t just in Martinsburg.”