The “breakthrough” unlimited data deal with AT&T didn’t last long.

When Apple first introduced its AT&T 3G-equipped original iPad, both companies marketed it with an unlimited 3G wireless Internet plan that soon became unavailable for new buyers and left grandfathered customers enduring a speed throttle when AT&T decided you used their network too much.

Burned customers banded together and sued both Apple and AT&T for bait and switch unlimited broadband. The two companies have now decided to settle, and as well as a whopper payout for the attorneys who filed the class action case, original iPad owners are going to share the proceeds:

• Customers purchasing a 3G-ready iPad before June 7, 2010 will receive a $40 check from Apple, even if you still have a grandfathered unlimited data account.
• Customers purchasing a 3G-ready iPad before June 7, 2010 who never activated an AT&T unlimited tablet mobile data plan will get a $20 discount off AT&T’s current $50 a month data add-on for up to one year.

Customers complained the steep price premium they paid for a 3G-equipped iPad wasn’t worth Apple’s asking price once AT&T removed the unlimited data option that Steve Jobs called part of a breakthrough deal.

Customers will not receive any awards until after February of next year, when the settlement is expected to be approved.

State regulators have fined Frontier Communications $41,400 for 414 violations of Washington’s law governing the largest amount a company can charge for a returned check.

The Washington Utilities and Transportation Commission gave Frontier 15 days to pay the fine, contest it by requesting a hearing, or seek a reduced penalty settlement.

The state found Frontier guilty of charging customers $20-25 for returned checks from Aug. 1, 2010 – March 31, 2012, despite the fact the maximum penalty Frontier is authorized to levy for a returned check in the state is $15.

Customers who overpaid Frontier for returned check charges should contact Frontier at 1-800-921-8101 to negotiate a partial refund or service credit. The state’s fine will not be used to repay customers.

More than 18,000 Time Warner Cable customers in upstate New York will receive average refunds of $119 each from the cable company that overcharged them for service since 2007.

New York Attorney General Eric Schneiderman announced a settlement with Time Warner Cable after a two-year investigation found that the company overcharged former Cablevision subscribers in 10 Upstate towns and villages. The settlement requires Time Warner Cable to pay $2.2 million in refunds to 18,437 customers and stop charging subscribers’ fees that exceed the amounts permitted under their municipalities’ Franchise Agreements. As part of the agreement, Time Warner Cable also agreed to pay$200,000 in fees and costs to the State of New York.

The settlement requires Time Warner Cable to refund overcharges collected since March 2007, with interest, to current subscribers in the Towns of Glenville, Livonia, Stafford, Oakfield, Geneva, Thompson, Lima, Batavia and the Villages of Waterloo and Ellenville.

Former customers and those that have moved away from these communities seem to be out of luck.

Schneiderman

“For too long, Time Warner Cable has been overcharging fees to its customers in direct violation of their local franchise contracts. This agreement brings millions of dollars in refunds to upstate consumers who overpaid their bills,” said Schneiderman. “Many New York families operate on a tight budget and every dollar counts. My office will not tolerate cable companies that ignore their contractual obligations and overcharge New York subscribers.”

Time Warner Cable’s billing practices were brought to the Attorney General’s attention by the Town of Glenville in January 2011. The Attorney General began a two year investigation which found that Time Warner Cable had in fact been overcharging Glenville residents for many years, and that Time Warner Cable had been improperly charging consumers in other Upstate communities with Franchise Agreements that Time Warner Cable had acquired from Cablevision Industries in 1995. Although Time Warner Cable stopped overcharging franchise fees to consumers and voluntarily made $1.4 million in refunds to subscribers in eight towns in 2007 and 2010, it continued to overcharge consumers in the ten towns and villages covered by this agreement.

A Franchise Agreement is a contract that local governments negotiate with cable companies granting the right to offer services and use public facilities. Some of the Franchise Agreements at issue limited the fee Time Warner Cable paid the town to 3% of gross revenues, and prohibited the cable company from billing subscribers any part of this cost. Other Franchise Agreements required Time Warner Cable to pay a 5% franchise fee and permitted Time Warner Cable to pass-through two-fifths of this fee to subscribers.  The municipalities also had the option to voluntarily allocate two-fifths of the fee to a fund subsidizing the cost of expanding the cable network in their communities, in which case none of the fee was permitted to be passed-through to consumers. The Attorney General’s investigation found that Time Warner Cable violated both types of Franchise Fee restrictions.

As a result of the settlement, Time Warner customers will receive credits on their bill within 90 days, with the amount proportional to their monthly subscription charges. Individual overcharges vary by customer and town, but average $119 with accumulated interest. As part of the Attorney General’s investigation, Time Warner Cable reviewed its records of all its New York Franchise Agreements purchased from Cablevision and identified no other towns where similar overcharges had taken place during the period from 2007 to 2013.

A surprise announcement from the U.S. Supreme Court that it will hear an appeal brought by Comcast Corporation in a class action lawsuit brought on behalf of Philadelphia consumers, despite a pending settlement, may mean the Supreme Court is on the verge of issuing another business-friendly ruling that will make class action cases more difficult to file.

Comcast had reached a tentative settlement in June with lawyers who brought a $875 million class-action lawsuit on behalf of Philadelphia area cable subscribers. The antitrust case, originally filed in 2003, accused Comcast of strategically swapping or acquiring cable systems owned by Marcus Cable, Greater Philadelphia Cablevision, Inc., Lenfest Communications, Inc., AT&T, Adelphia Communications Corp., Time Warner, and Patriot Media in and around Philadelphia for the purpose of creating a super-sized Comcast cable system that could deter competitors from entering the market and allow Comcast to charge higher prices for service.

RCN Telecom Services originally intended to compete for cable customers in the Philadelphia region, but found it could not break into the market because Comcast allegedly hired as many available technicians it could find and tied them down with exclusive contracts. RCN also claimed Comcast targeted potential customers with special, allegedly below-cost deals to retain their business. RCN later filed for bankruptcy.

“Stated bluntly, Comcast and other large cable operators have demonstrated both the inclination and the wherewithal to use their market power to crush broadband competition in their local markets whenever it has the audacity to appear,” RCN alleged.

In 2002, RCN went public with a series of allegations:

Comcast intimidates independent construction and installation contractors. Comcast prevented or tried to prevent about 15 Philadelphia-area contractors from doing business with RCN through “non-compete” clauses, RCN alleged. The company provided specific names of contractors and Comcast personnel in sealed documents.

Those practices dated at least to the late 1990s, when Comcast acquired Suburban Cable, RCN said. Both Suburban and Comcast went “to extraordinary lengths to document ‘violations’ and intimidate contractors who were thought to be in contact with, or working for, RCN,” RCN said.

RCN cited instances of Suburban Cable employees, many of whom later worked for Comcast, allegedly following contractors in their trucks and taking photographs to document contractors seen at an RCN office or work site. These photographs then became “evidence,” RCN said, to support contractors’ termination.

As for predatory pricing, RCN claimed that before its entry into Folcroft in 2000, Comcast allegedly established a sales “swat team” instructed to sign up customers for 18-month contracts in exchange for cheaper cable services.

The plaintiffs’ attorneys want subscribers to receive refunds representing the savings they would have enjoyed had a competitor successfully forced prices down.

Comcast and the plaintiffs’ counsel reached a tentative settlement in June after both sides learned the lawsuit would proceed to trial this September. But in a surprise announcement, the U.S. Supreme Court suddenly decided to step in and hear an appeal filed by Comcast. Comcast immediately declared the settlement incomplete and has now declined to proceed with it, believing it has a more favorable outcome waiting at the Supreme Court.

Kenneth A. Jacobson, a professor at Temple University’s law school, told the Philadelphia Inquirer the Supreme Court does not typically decide to hear a case “during the settlement negotiation and approval process.”

Other Supreme Court watchers suspect the Court’s sudden involvement in the case means it is likely to issue a precedent-setting decision, more likely than not in Comcast’s favor, that will be talked about in law journals for the next decade.

Comcast Center in downtown Philadelphia

The specific point of Comcast’s appeal that interests the Supreme Court has to do with how a class action case certifies damages to the court hearing the case. The Supreme Court agreed to hear the case based on, “whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

Currently, courts insist that the burden of proof for damages lies with the plaintiff, but they are not necessarily required to demonstrate the actual individual damages suffered by each member of a proposed class action. Many judges accept the concept of fixed group damages based on a composite of an average proposed class member. That amount gets multiplied by the number of members in the certified class action to arrive at the total requested damages. Typically, both sides negotiate a final settlement, deduct attorney fees and costs, and then class members typically get a change in a company’s policies, coupons good for a future purchase or an actual refund in the mail.

The Supreme Court may find that concept inadequate, and insist on a detailed analysis of actual harm done to each proposed class member — a high and potentially expensive hurdle to cross for many class action cases. Legal analysts suggest the intended effect of such a decision would be to further deter class action lawsuits against companies, because the costs and complexities involved would increasingly not be justified.

In the Comcast case, the cable company wanted the court to dismiss the case, and for some very novel reasons:

1. Since Comcast effectively kept competing “overbuilding” cable systems out of Philadelphia, there is no evidence of any theoretical competition benefits such as reduced prices;
2. Since no competitor actually got their service up and running in Philadelphia, Comcast argues there was no competition to eliminate;
3. RCN, in Comcast’s view, was never actually going to start service in Philadelphia because of their own financial woes;
4. Without actual competition in Philadelphia, there is no basis for any expert witness hired by the plaintiff to credibly estimate damages;
5. Even if Comcast was engaged in anti-competitive behavior in Delaware County, that cannot be used by plaintiffs to serve as evidence of class-wide impact for the entire multi-county Philadelphia Comcast cluster.

Over the past few years, the Court has ruled in favor of corporations trying to compel less-costly legal avenues — like mandatory arbitration — for consumers who feel harmed by a company’s actions.

(Image courtesy: FCC.com)

The Department of Justice today announced it had achieved a settlement with Verizon and four major cable operators regarding their efforts to establish a cross-marketing agreement to sell each other’s services, sell wireless spectrum, and develop a technology research joint venture.

Despite criticism that the deal represented a strong case for marketplace collusion that would reduce competition between Verizon’s FiOS fiber to the home service and cable company offerings, the Justice Department signed off on a series of deal revisions it defends as protective of competition and consumers. Among them is a time limit for the cross-marketing deal and restrictions on where Verizon Wireless can cross-market cable company services.

“By limiting the scope and duration of the commercial agreements among Verizon and the cable companies while at the same time allowing Verizon and T-Mobile to proceed with their spectrum acquisitions, the department has provided the right remedy for competition and consumers,” said Joseph Wayland, acting assistant Attorney General in charge of the Department of Justice’s Antitrust Division. “ The Antitrust Division’s enforcement action ensures that robust competition between Verizon and the cable companies continues now and in the future as technological change alters the telecommunications landscape.”

The proposed settlement forbids Verizon Wireless from selling cable company products in areas where its FiOS service is available. That is a major reversal from the original agreement between Verizon and Comcast, Time Warner Cable, Cox and Bright House Networks which restricted Verizon Wireless from marketing FiOS. Under the original deal, Verizon Wireless stores could effectively only sell cable company products, never FiOS. The Justice Dept. will still permit Verizon Wireless to sell cable service, but supposedly not at the expense of the fiber service.

The agreement also specifies that Verizon Wireless can sell cable service in areas where it currently markets DSL only until the end of December 2016, renewable at the sole discretion of the Justice Dept. Antitrust lawyers were concerned Verizon would be unlikely to expand its FiOS network or improve DSL service in areas where it could simply resell cable service.

Justice lawyers also put a similar time limit on the technology joint venture, making sure any collaborative efforts don’t impede competition.

The settlement also approves of Verizon’s proposed acquisition of spectrum from the cable companies and T-Mobile USA’s contingent purchase of a significant portion of that spectrum from Verizon.

The deal has been signed off by Justice lawyers, the companies involved, and the New York State Attorney General’s office. FCC chairman Julius Genachowski also weighed in separately with a positive press statement about the agreement.

But consumer advocates remain concerned that the deal does nothing to enhance competition and allows the companies involved to enjoy a new era of competitive detente from a stable and predictable marketplace. Verizon still has little incentive to innovate its DSL service, free to pitch cable service in those areas instead, and without robust changes to the marketplace where FiOS is sold, cable operators have little to fear from Verizon’s stalled FiOS rollout and recent price increases.

Parts of the agreement may also prove confusing to consumers. An important concession prohibits Verizon Wireless from selling any cable service to a street address that is within the FiOS footprint or in any neighborhood store where Verizon FiOS is available. Consumers likely to receive broadly marketed special offers that offer bundled discounts could be frustrated when they are prohibited from signing up because of where they live.

This concession also requires both Verizon and cable operators collaborate to share information about where Verizon FiOS competition exists currently and where it will become available in the future, so that unqualified customers are not sold cable service in violation of the agreement. That represents valuable information for cable operators, who will receive advance notification that customer retention efforts may be needed in areas where Verizon’s fiber optic service is scheduled to become available for the first time.

Any person may submit written comments concerning the proposed settlement during a 60-day comment period to Lawrence M. Frankel, Assistant Chief, Telecommunications & Media Enforcement Section, Antitrust Division, U.S. Department of Justice, 450 Fifth Street, N.W., Suite 7000, Washington, D.C. 20530. At the conclusion of the 60-day comment period, the U.S. District Court for the District of Columbia may enter the proposed settlement upon finding that it is in the public interest.