Vinh Pham had enough trying to deal with Comcast’s impenetrable thicket of customer service confusion trying to get his broadband service from the cable company up and running again after it suddenly stopped working this past March.

I called Comcast and they gave me a really hard time. I was trying to figure out why my Internet was down, and they told me that I did not have Internet. They said my account only has TV, and that’s all I am being charged for.

This annoyed me because I ordered Internet + TV on a promotion price, not just TV, and I had called them to fix this mix up before.

The guy on the phone kept insisting that I was wrong and that I needed to upgrade to the “Triple Play” for $120. That annoyed me even more. I do not want your freaking Triple Play. Who the hell still uses landlines, let alone buy landlines through their cable company. Stop trying to sell me [something] I don’t want.

According to Pham, the Comcast representative accused him of stealing Internet service, which was the last straw for the California customer.  He asked to cancel all of his services.  Pham repeated his story to a customer retention agent and offered to share a copy of the Comcast technician’s installation work order, which showed he ordered and received Xfinity broadband service.

Evidently, Comcast did not correctly provision Pham’s account with the promotion he signed up for, and miles of red tape ensued trying to get his account updated accurately.  Each time the changes did not “take,” Pham’s Internet service would eventually stop working.

Customers using Pham's technique need to have a work order ID and account number to activate service

Pham then discovered Comcast customers could activate Xfinity broadband service themselves because the cable company provided open access to a web page intended for technicians installing service.  Pham simply entered his account number, the work order number from his receipt, and the MAC address on his cable modem, and his broadband service was back without navigating argumentative customer service agents.

Pham shared his find on his personal blog, walking existing Comcast customers step-by-step through the process he followed.

Now, months after the article was published, Comcast contacted the company that hosts Pham’s blog and demanded the entire blog be censored, accusing Pham of telling people how to steal Internet service.

Admittedly, Pham’s use of the phrase “free Comcast Internet” probably did not help, but a review of his technique makes it impossible for non-paying customers to simply activate service for nothing — a customer account number and work order number are required, and presumably Comcast won’t simply accept made-up numbers.

More importantly, Comcast’s efforts to censor one of their customers calls the cable company out for its “shoot customers first, ask questions later” policies.

It’s further evidence the cable giant cannot be trusted when it claims it will observe voluntary Net Neutrality protections against censoring Internet content.

The blowback from Comcast’s actions have provided the company a lesson in “the Streisand effect,” where companies trying to remove information from the Internet only draw bigger attention to the information they are desperate to remove.  Comcast’s censorship efforts have been made futile by hundreds of Internet users who learned of the company’s efforts.  They have republished the information from Pham’s blog, which currently remains intact.  Had the company simply (and quietly) password-protected their technician portal, nobody would have given it a second thought.  Now Comcast is in a bigger PR mess than they started with.

When cable giants like Comcast trample all over free speech (and their paying customers), it teaches a valuable lesson why giving them a chance to grow even larger through a merger with NBC-Universal is a dangerous mistake.

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Comcast demands the removal of Pham's blog

Not really

Back in 2002 Vincent and Liza Concepcion walked into a southern California AT&T Mobility store to purchase new cellphones for themselves.  AT&T advertised a buy one, get one “free” offer for cellphones.  What AT&T didn’t say was that the family would end up paying more than $30 in hidden sales taxes for both phones.

More than eight years later, that purchase — and the resulting class action lawsuit it launched — threatens to sweep away important consumer protections by letting corporations ban class action cases and curtail Attorneys General from enforcing state consumer protection laws.

Oral arguments in the case AT&T Mobility v. Concepcion were heard before the U.S. Supreme Court last Tuesday in one of the most important consumer protection cases in decades. At issue is this clause, inserted into the Concepcion’s service contract with AT&T that would disallow the family from participating in a class action lawsuit:

“You and AT&T agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.”

That clause clashes with several state laws, California’s included, which basically say consumers cannot be compelled to sign away their basic consumer protection rights.  California law also says some contracts can be considered unenforceable ‘if they are built on deception, are too-one sided, or violate broader public policy.’

Hello, AT&T.

Vincent and Liza, through their attorney, argue that bringing an individual lawsuit against AT&T over $30 in sales taxes would be crazy — no lawyer would take the case and no plaintiff would front a retainer well beyond the amount in dispute.

As Justice Ruth Bader Ginsburg wrote in another class action case, “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

The “class action” concept provides at outlet for aggrieved consumers who can attract legal representation if a company can be sued on behalf of every impacted customer.  For AT&T, that could mean facing not just the Concepcion family, but millions of Californians — each charged sales taxes for phones the company advertised as “free.”

How AT&T’s Case Has Broadened Into a Major Dispute Over Arbitration vs. Class Action Lawsuits

It's easy to navigate AT&T's terms and conditions to achieve a good outcome from arbitration, right?

But what began as a legal argument over a “free” phone has broadened into a much larger legal case before the Supreme Court: can consumers be compelled to participate in company dispute settlement schemes and give up their legal right to petition the court system for relief?  Further, what happens when those contract clauses conflict with state consumer protection laws?

Following in the footsteps of the credit card industry, AT&T inserted a clause mandating customers stay away from class action lawsuits.  By telling consumers they are forbidden to participate in such cases, AT&T pushes customers into the murky world of “arbitration” — a system where AT&T picks a private company, with whom it has a financial-business relationship, to “impartially” rule on customer complaints in secret proceedings.  Consumers have to pay their own way to attend arbitration hearings, often held in cities a thousand miles away or more.  They also must agree the decisions are binding and final.

AT&T argues, both directly and through its dollar-a-holler advocates, that class action cases are annoying, expensive, and do not typically deliver substantial benefits to class members.  The wireless carrier argues arbitration of individual cases is much faster and potentially more lucrative to would-be class action members.  Stephen J. Ware, a professor of law at the University of Kansas School of Law argues consumers have often done far better avoiding litigation and entering into arbitration programs.

But consumer advocates claim AT&T’s arbitration rules are stacked against consumers.  Arthur H. Byrant, executive director of Public Justice argues:

First, AT&T’s “agreement” bars its customers from court (except small claims court) and requires them to utilize the company’s mandatory arbitration program. Its rules say that, if a customer completes the process and recovers more than the last written settlement offer AT&T made before the arbitrator was chosen, a $7,500 premium will be paid. Second, the “agreement” bans AT&T’s customers from bringing or participating in class actions against it. Third, the “agreement” provides that, if AT&T’s class action ban is found to violate the law (as 20 states have held contractual class action bans do when they effectively immunize a company from liability), the arbitration clause “blows up” and the class action must proceed in court. Then, when the class action ban is struck down under state law (as AT&T knew it would be), the company springs its wacky trap: It argues that the Federal Arbitration Act of 1925 (FAA) pre-empts — and invalidates — that state law because (believe it or not) the state law is biased against arbitration.

AT&T’s call for pre-emption suffers from a bad connection. State law is not biased against arbitration. It allows AT&T to resolve disputes in either arbitration or court. Only AT&T’s “agreement” is biased against arbitration. Its “blowup clause” precludes class actions from proceeding in arbitration, but not in court.

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Using the scroll bar to the right of the player, move down and click on Attorney Paul Bland’s name and watch him argue forcefully that AT&T’s motives are plain and simple — to allow them to get away with anything they want and not face accountability from the legal system. — “Arbitration is not the Candy Bridge into Rainbow Land.”

Tapping Into Consumer Discontent With Class Action Cases for the Benefit of AT&T

What the lawyers get

Ask anyone about the merits of most class action settlements and one will often get a response that the lawyers win while consumers lose.  Just this week many owners of HP printers will get word a deal has been reached over a class action case involving printer ink.  The multiple law firms involved will split not more than $2.9 million under the terms of the proposed settlement.  Consumers will get “e-credit” worth $5, $2, or $6 redeemable at HP’s online store, which sells ink cartridges at inflated prices.  In effect, HP has little to grumble about delivering “awards” to consumers that ultimately benefit its own enterprise, the only place those awards can be redeemed.

With settlements like that all too common, it is easy for AT&T’s advocates to tap into consumer discontent with class action lawyers, proclaiming AT&T’s case is actually consumer-friendly because it would cut those money-grabbers out of disputes with the company.

But consumer advocates stress class action cases do more than deliver settlements — they deter bad behavior on the part of would-be wrongdoers, bring corporations to account fiscally when they are forced to settle, and open the door to legal discovery which can uncover patterns of extensive wrongdoing that would otherwise remain secret in arbitration.

But most important of all, class actions impact every customer, not just the handful who navigate arbitration to achieve a confidential settlement.  That can be critically important to stop unfair business practices.

What you get

Of course, reform is also desperately needed in the class action system.  Too often, judges approve class action cases that deliver maximum benefits to the law firms that bring them, leaving consumers with peanuts.  Strict limits on legal fees recouped in such cases, perhaps tied to a percentage of total recovery would be a start, as are bans on settlements that don’t provide cash refunds to consumers who choose not to conduct further business with companies that abuse them.  Coupons, low value trinkets, and donations to third party groups (non-profit or otherwise) are insufficient.  Attorneys that selfishly claim most of the proceeds for themselves have only themselves to blame when corporations use that fact against them under so-called “tort reform” proposals.

Some advocates of AT&T’s position also argue that government oversight can provide a more effective system of checks and balances against corporate overreach.  While a noble sentiment, anyone who has watched the revolving door of lobbyists going to work for such agencies, later returning to lucrative jobs with the companies they formerly regulated, knows that is a classic case of the fox overseeing the hen house.  In an era of government “oversight” that missed everything from BP’s safety lapses, salmonella-infected eggs, produce, and meat, tainted pet food ingredients from China, and indecisiveness about telecommunications reform like Net Neutrality — such proposals are not to be treated seriously.

The Supreme Court Decision

While it will be months before the Court rules, most observers suspect consumers will ultimately win the case.  Liberals on the court are skeptical AT&T’s efforts to preempt state consumer protection laws are actually for the benefit of consumers, and some of the most conservative members of the court like Justice Clarence Thomas, big believers in “states’ rights” are likely to find for the Concepcion family.

“Based on what was said during the argument, I predict a 8-1 or 7-2 vote for the consumers and California, with Samuel Alito dissenting and John Roberts a toss up. Thomas, who never speaks at oral argument, will vote for the consumers and state on federalism grounds, as he always does in [arbitration] cases,” writes Lawrence Cunningham, Argument in Class Waiver Case Favors Consumers, States, Concurring Opinions.

“[I]t doesn’t look as though there are too many votes at the high court to do away with the right of consumers to band together to sue the great American manufacturers of fine print,” said Dahlia Lithwick, Can You Hear Them Now? The Supreme Court reads the fine print on your cell phone contract, Slate.

If these two observers are wrong, it will be open season on consumers who will be forced into arbitration agreements that deliver all of the benefits to companies like AT&T.  Under such a scenario, there would be little to dissuade companies from developing new fine print to trick and overcharge consumers.  Few will be willing to buy a ticket to fly halfway across the country to sit for arbitration proceedings over a $20 dispute, especially when the arbitration firm’s income depends on fees paid by the very companies that are accused of wrongdoing.

Virgin Media broadband customers in the United Kingdom who spend free time playing the highly addictive World of Warcraft (WoW) suffered some serious withdrawal episodes after game developers, who may know how to create games like 벳엔드, released a major software patch (v4.0.1).

Just after installation, customers noticed their game play started slowing to a crawl, resulting in game performance worthy of a Noob popping Xanax.  With online ‘street cred’ at risk on the multiplayer game environment, WoW players rushed to Virgin’s support forums inquiring about the sudden slow lane performance:

Ever since this patch I have experienced very high latency (around 2-4k ms) whilst being in combat in 25-man raids. This latency causes me to disconnect from the game after around 10 seconds of very lagged out combat. Outside of raids I seem to yo-yo up and down. I have been as low as 70ms and as high as 1kms.

I have tried everything I can think of game related. I have ensured all the correct ports are opened via port forwarding on my router.  I have tried running the game in its default state with all add-ons removed. I have done virus scans, disabled my firewall and I am running out of options. No one else in-game seems to have the same problems as I do. Admittedly, a couple of them are Virgin Media customers too and have no problems but I cannot think what else it could be.

Now stuck in the slow lane on Virgin Broadband

Virgin Media customers and staff initially seemed at a loss about what could cause just WoW traffic to become very un-WoW.  Virgin’s terms of service includes a virtual paddle to spank customers who “excessively utilize” their broadband connections, and the patch itself — amounting to at least 7GB with accompanying updates — was worthy enough to put some customers in the time-out corner.  But even as company support officials were asking impacted customers to do the problem-solving sleuthing for them, a growing number of customers suspected the provider’s “intelligent network traffic shaping” technology was the real culprit.

Traffic shaping is a term Americans are just getting acquainted with.  It’s essentially a virtual traffic cop that can identify different types of online traffic and assign different levels of priority for different applications.  The broadband industry claims traffic shaping is a net plus for broadband consumers because it forces traffic gorgers like peer to peer file sharing to the back of the line, making room for more predictable performance of Internet phone calls, video, and other time-critical Internet applications. Virgin even markets its broadband service as enhancing online game play by giving the highest possible priority to game-related traffic. Join betpro today for access to a wide range of sports betting options and exciting casino games!

But when traffic shaping goes bad, it can create a nightmare for broadband customers who find roadblocks that ruin their online experience.

Virgin initially denied it was responsible for traffic shaping WoW to the point of unusability. Eventually, Virgin admitted it -was- responsible for the game traffic throttles, but passed the blame to WoW’s game developers, Blizzard Entertainment.  At one point Virgin suggested the company might want to recall the latest patch, just to get the game to work again on Virgin’s broadband network.  When that didn’t fly, company officials eventually released a statement taking responsibility, but telling customers it will be weeks before their “traffic management supplier” can create a workaround:

Since the latest World of Warcraft update we have seen that the type of packets used by Blizzard to deliver the on-line gaming has changed significantly.  This means that Virgin Media’s National (ADSL) traffic management system is unable to recognise the packets as gaming traffic and assumes that they are peer to peer traffic.  Due to this the traffic management system does not place the packets within the gaming queue which has the highest priority and lowest latency within the VM network, instead they fall into the peer to peer class which gets a low level of priority within our network and by default a higher level of latency.

We are working to try and rectify this as soon as we can with our traffic management supplier however it will take us a few weeks to upgrade the traffic manage solution so that is can recognise the new traffic class and correctly classify it as gaming.  Unfortunately due to the nature of most traffic management solutions we can not manually move these packets into the gaming queue as the solution can not work out which ones to move.

We appreciate that some customers will have noticed a similar issue with the previous World of Warcraft update.  The reason behind this is because gaming companies are not prepared to share the updates with Virgin Media or traffic management suppliers prior to its release and so the first time we see the new packets is when people start to use the new updates.  We are trying to change this view point of the gaming companies however at present they are un-willing to work with us.

We apologise for the affect that this has on your gaming experience and we will update you when we have a confirmed fix date for this.

By that time, many WoW enthusiasts will have probably fled Virgin for another provider.

Our reader James, who alerted us to this story, notes it takes a special kind of nerve for a broadband provider running speed traps to blame software developers for the problem.

“So, wait — Virgin is blaming the game developers because their code runs on the assumption that all traffic is treated equally and because they don’t verify their updates with the ISP before pushing them out to consumers?” James incredulously asks.

Virgin could always discontinue their faulty un-intelligent network traffic shaping scheme until a solution can be found, but that hasn’t happened.  It could interfere with “preferred content partnerships” — clients who pay to avoid the speed traps and throttles and always get special treatment.

Paying customers?  They can wait two or three weeks.

A Blizzard representative said Virgin’s buck (or is it pound?)-passing was inexcusable because the game producer -has- made efforts to reach out to ISPs in the past:

“In our defense, most of our previous attempts to work with ISPs have been shut down by the ISP management. I’m going to avoid naming actual ISP names for obvious legal reasons. We’re not the ISP’s actual customer so they rarely care what we have to say.”

And that is a perfect real-world example of what happens when Net Neutrality is not the law of the land.  Providers claim their traffic management schemes benefit their customers, but in reality they are only responsive to the “preferred content partners” that pay them to be responsive.

If Americans want to enjoy a similar level of service from their Internet Service Providers, just oppose Net Neutrality, sit back and wait… and wait… and wait.

Yet another telecom industry-backed front group claiming to represent the interests of small businesses managed to get its very-predictable opposition to Net Neutrality published in this morning’s Washington Post.  That is a small achievement considering the newspaper’s editorial page that increasingly promotes Big Telecom’s agenda.

This time it was the AT&T-sponsored “Small Business & Entrepreneurship Council,” which the Post claims is a “nonpartisan advocacy and research organization dedicated to protecting small business and promoting entrepreneurship.”  Hardly.  More on that later.

Karen Kerrigan is president, chief executive — and head regurgitator of the same false talking points AT&T and others have used to oppose Net Neutrality from the start:

The Federal Communications Commission is poised to impose new rules on the Internet using an outdated regulatory regime originally designed for the monopoly telephone system of the 1930s.

[…]Essentially, government regulations and bureaucrats would now direct how traffic over the broadband Internet flows rather than privately managed networks — they would also dictate what type of speeds, services and prices consumers should have (one size fits all) rather than let the market and innovators determine those things.

[…]Net neutrality rules would give the FCC new powers to micromanage the operations and pricing and service levels of the privately owned and financed broadband networks that are the physical heart of the Internet. This is a strategy for chasing away the billions of dollars that broadband network operators (principally the telecom and cable companies) plan to invest in broadband infrastructure and new technology.

Kerrigan

Of course, the “outdated regulatory regime” we’ve heard about from AT&T repeatedly is not coming along for the ride in broadband reform… only the authority to provide an effective checks-and-balances system for the marketplace duopoly most Americans find when shopping for Internet access.  Nothing about Net Neutrality dictates speeds and prices consumers pay for broadband.  Considering the United States continues to lose ground in broadband rankings, all of the innovation the SBE claims would be lost was never here to lose.  It has been in South Korea, Japan, and increasingly eastern Europe.

Net Neutrality does not micromanage operations, pricing, or service levels.  In fact, it is the most simple, easy to understand government proposal around.  It states simply that broadband providers will treat all websites equally, will not run toll booths to extract extortion payments from content producers to guarantee their material won’t be artificially slowed down or blocked, and guarantees no provider censorship.  The industry’s claims that Net Neutrality will harm investment is phoney-baloney from the phone and cable companies.  They’ve earned fat profits in a Net Neutral-world for a decade.  But now decreasing interest in landlines and cable TV service means they’re trolling for more revenue, and they think they’ve found an untapped goldmine setting up toll booths on the Internet.

In Kerrigan’s world view, not allowing AT&T and Verizon to install paywalls, speed throttles, and establish paid special relationships with big businesses harms small businesses.  To prove her case, Kerrigan quotes Evelyn Nicely, president of Springfield-based Nicely Done Kitchens:

“Small businesses such as ours depend on every tool we can use to succeed. Undoubtedly, our strongest ally in terms of client communication, marketing, and product specifications comes from the use of broadband and the Internet. It has given us the ability to compete with anyone, even the larger and better-funded players in our industry, through our Web site and its innovative tools, which enable us to effectively market our services to the public.”

Of course, nothing in Nicely’s comments opposes Net Neutrality.  In fact, such important broadband reform preserves the strongest ally her business has — a free and open Internet that lets her compete with far larger players on an equal, level playing field.  The biggest threat to that level playing field is not passing Net Neutrality.  It would allow companies like Lowes or Home Depot to become paid, preferred content partners with broadband providers who could direct Ms. Nicely’s potential customers not to her website, but to them.  Large companies who can afford the price will find their ads splashed on broadband provider-home page portals that deliver customized web searches, preferred partner online ads and error redirection pages that can send customers who may mistype Nicely’s business name to her direct competitors.

How Nicely could ultimately manage to keep her business open in a broadband world where special favors can be bought and delivered should be a major concern for her and every other small business.

Kerrigan's Small Business Survival Committee was dedicated to serving the interests of Big Tobacco companies like Philip Morris.

It’s no concern of the SBE, whose corporate backers keep this front group up and running.  But then it’s not the friend of small business it claims to be, and it’s hardly a “council.”

Before discovering the money that can be made parroting talking points for big cable and phone companies, Kerrigan was shilling for Big Tobacco, getting substantial contributions for her Small Business Survival Committee (a/k/a Small Business Survival Foundation) which received more than $100k from Philip Morris, hardly a small business at the time.

The SBE knows how to attract media attention through catnip-like “scorecards” that rank elected officials based on just how friendly they are to SBE’s benefactors.  The group and its leaders are darlings of conservative political media.  Their views see Communism anywhere individuals collaborate on their own in a way that costs big business profits.  Its chief economist even saw Borg-socialism in the concept of “open source” software:

“In the software universe, something similar to the Borg from ‘Star Trek’ seems to be at work,” declared SBE’s Raymond J. Keating. “It’s called open source software distributed under an agreement known as General Public License (GPL). If you recall, the Borg are ‘Star Trek’ bad guys. They’re basically evil bureaucrats with skin problems, who assimilate every species they come in contact with throughout the universe. Societies are wiped out. Individual thought and creativity are extinguished as individuals are absorbed into a collective. Something similar could be said of GPL-based open source software.”

An impartial, fair observer of telecommunications policy for small business the SBE is not.

Unfortunately, the Washington Post, whose parent company owns cable operator Cable One, has little incentive to see through the SBE’s haze of telecom industry-inspired talking points.

"DVD's are so five years ago!"

Netflix, which has seen its Canadian streaming-only video service welcomed with usage cap reductions by Rogers Cable, has finally started to wake up to the threat its online video business model is one speed throttle or usage cap away from oblivion.

As the video rental company now contemplates launching a streaming-only version of its service in the United States, it has now firmly waded into the Net Neutrality debate.  In a filing earlier this month, Netflix impressed upon the Federal Communications Commission the importance of prohibiting providers from establishing blockades to keep its competing video service from threatening cable-TV revenue:

“The Commission must assure that specialized services do not, in effect, transform the public Internet into a private network in which access is not open but is controlled by the network operator, and innovative Internet-based enterprises are permitted effective access to their consumers only if the enterprises pay network operators unreasonable fees or are otherwise seen by such network operators as not threatening a competitive venture.”

Netflix online video packs a real wallop, as Americans embraces the service as a suitable and cheaper replacement for premium cable movie channels.

Sandvine, which pitches “network management” products to the broadband industry, reported Netflix now represents more than 20 percent of all downstream broadband traffic in the United States during peak usage times between 8-10pm.

The company’s financial results seem to affirm its growing impact as an online video entertainment player.  The Washington Post reports in the third quarter, Netflix saw a 52 percent gain in subscribers to 16.9 million. Revenue increased 31 percent to $553 million. But most interesting: 66 percent of subscribers watched more than 15 minutes of streaming video compared with 41 percent during the same period last year. The company predicted Wednesday that in the fourth quarter, a majority of Netflix subscribers would watch more content streamed from the Web on Netflix than on DVD.

That prompted CEO Reed Hastings to say Netflix should now be considered a streaming company that also offers DVD-by-mail service.

If providers launch Internet Overcharging schemes that limit broadband usage or throttle their competitors to barely usable speeds, that growth could come to an end quicker than the introduction of the next “unfair usage policy.”

Sandvine’s research confirmed something else.  As broadband speeds increase, so does usage.  In Asia where broadband speeds are dramatically higher than in the United States, Sandvine found median monthly data consumption is close to 12 gigabytes per household compared to 4 gigabytes in North America.  And Asians stay very close to their broadband connections, using them on average for almost 5.5 hours per day, compared to just three hours for North Americans.

When one considers the majority of broadband users are only starting to discover online video, those numbers are headed upwards… fast.