Clearwire’s often-unclear “network management” policies are the subject of a lawsuit filed yesterday in Seattle seeking class action status.

Angelo Dennings vs. Clearwire Corporation was filed in the Western District of Washington federal court, and seeks refunds for consumers who were mislead by the company’s failure to disclose its network speed throttling and usage limitations, and charged early termination fees when subsequently canceling service.

Clearwire promises that its high-speed Internet service provides a “fast” and “always on, always secure” Internet connection allowing users to “[d]ownload pictures, music and videos.” But Clearwire does not provide an “always on,” “high-speed” connection as it promises. Clearwire purposefully slows the connection of its users because it cannot accommodate the high volume of traffic. Clearwire engages in a practice known as “throttling,” which is the intentional delay and/or blocking of Internet communications. This practice deprives Clearwire customers of the ability to “[d]ownload music and videos,” and leads to slow connection speeds.  Clearwire engages in throttling at times when demand for Internet use is highest, beginning at approximately 7:30 p.m. and ending at about 1:00-to-2:00 a.m.

If users attempt to cancel their service, Clearwire claims that, pursuant to its “contract” with them, it is entitled to collect an early termination or a re-stocking fee. The “contract” referred to by Clearwire is not a contract between it and its customers. The contract between Clearwire and its customers is simply that the customers will pay for, and Clearwire will provide, “unlimited” Internet usage at certain speeds, depending on the speed and payment plan selected in Clearwire’s stores, kiosks, or online.

The remaining “terms” invoked by Clearwire at its convenience are embedded in a document that consumers never see prior to subscribing to Clearwire’s service. Clearwire sells its services in its stores, kiosks at shopping centers, and online. Clearwire’s stores and kiosks do not have copies of this “contract” on hand for potential subscribers to read before they “agree” to its terms. Users who subscribe through Clearwire’s website never see the contract either because the link to it is at the bottom of a page, in substantially smaller font and lighter shade than all of the other text on the page. The text states: “Want to read the fine print (and who doesn’t read the fine print?) It’s all there in the CLEAR Legal Index.” No one wants to read fine print legalese and almost no one does. The statement is obviously and sharply ironic, and mocks anyone who may have been fussy enough to have considered continuing.

Despite not showing its terms to consumers, Clearwire refuses to allow users to cancel their service without paying the unconscionable fees it claims it is owed under this “contract.” These fees include an early termination fee (“ETF”), which penalizes consumers that want out before the end of the two-year term. Although Clearwire breached its contract with its customers, Clearwire insists on the payment of this ETF when customers realize they are not getting what they bargained for.

The suit argues that Clearwire has oversold its wireless broadband network, and allegedly quotes a company representative at one point telling Dennings, “Clearwire had signed up more customers than its cell towers could accommodate, and that therefore it was ‘managing’ users’ accounts.”

Attorney Clifford Cantor argues in the filing that Clearwire reduces customer speeds to 300kbps or lower when their network is congested, making the service unsuitable for most broadband applications.  Dennings, who lives near Ft. Worth, Tex., was outraged to learn Clear sold him a home and mobile broadband account that was advertised as a replacement for wired cable or DSL broadband, but was left with service he considered largely useless when throttled.  Even more upsetting, the suit alleges, Denning was asked to pay a $219 early contract termination and restocking fee when he tried to cancel service over the matter.

Cantor is asking for a court ruling declaring Clear’s policies to be unconscionable, attorneys’ fees of at least $5,000, and refunds for all impacted subscribers.

Thanks to Stop the Cap! reader Michael in Chicago for sending along a copy of the lawsuit.  He runs the “Clear/Clearwire internet not as advertised” Facebook group.

While America’s largest cell phone companies battle over map coverage and work towards limiting wireless data usage, one super-regional wireless carrier is willing to pay customers to dump their old carrier and switch.

Privately owned Cellular South, which delivers home coverage over its own network in Memphis, the Florida Panhandle, Rome, Georgia, and parts of Mississippi and Alabama, is offering $100 to hand over your AT&T iPhone and get a brand new Android phone.  The company will even cover up to $200 of any early termination fees charged by AT&T or other carriers.

The company offers smartphone plans starting at $50 a month that includes unlimited mobile web access.  Customers with two or more smartphones on one account can get “unlimited everything” service for $59.99 per line.

Cellular South, virtually unknown outside of its service areas, has gained wider attention in recent days because of its stand against Verizon Wireless’ LTE network policies and an unrelated total meltdown of a Lauderdale County, Mississippi Board of Supervisors meeting that began with a debate about switching away from AT&T.

[flv width=”640″ height=”447″]http://www.phillipdampier.com/video/Cellular South Ad.flv[/flv]

An ad for Cellular South promotes the fact its smartphone data plan delivers unlimited usage.  (1 minute)

The company is planning its own LTE network for its local coverage areas and got into a major dispute with Verizon Wireless, a fellow CDMA carrier, over the LTE standard’s roaming capabilities.  Wireless providers who belong to the Rural Cellular Association are disturbed that without interoperability requirements from the FCC, big national carriers will be able to exclude small players from their networks.  Even worse, companies like Cellular South may have trouble finding affordable wireless equipment that works on the frequency bands they are allocated to use.  What this means for consumers is that equipment purchased for Cellular South’s LTE network may not function while roaming.  The carrier told the FCC:

Lack of interoperability in the 700 MHz band will impose significant costs and burdens upon A Block licensees, which will competitively disadvantage smaller and regional carriers and their consumers. By delaying a decision on interoperability, the FCC is denying rural America access to 4G service. Cellular South paid $192 million dollars for licenses in Auction No. 73 and for months has been prepared to immediately put available capital to work to deploy its 700 MHz network in compliance with the FCC’s build-out requirements and for the benefit of its rural and regional consumers. But, without the certainty of interoperability across the 700 MHz spectrum, Cellular South’s capital will remain on the sidelines – unable to create jobs or increase economic activity within its 700 MHz license area.

Collectively, the rural and regional carriers holding Lower A licenses do not have the scale or scope to attract equipment manufactures making Band Class 17 or Band Class 13 equipment to produce Band Class 12 equipment at reasonable costs. Even where Band 12 equipment can be made available, the costs are unnecessarily inflated by the limited scale resulting from the lack of interoperability across the 700 MHz bands. If such equipment were produced, it would not be technically capable of roaming outside of Band Class 12 deployed networks. Nevertheless, rural and regional carriers like Cellular South may have no choice but to reduce the speed and size of their 700 MHz deployment and pay the unnecessarily inflated costs of Band 12 equipment and devices if it wants to compete with Verizon Wireless and AT&T in the 4G market.

The Rural Cellular Association noted the FCC inquired whether or not rural carriers could simply rely on the good will of Verizon Wireless, which is running its own private interoperability initiative, the Rural American Partnership Program.  Verizon says it will work with rural carriers and sign roaming agreements with participants to help ensure equipment was standardized across multiple carriers.  But the Rural Cellular Association claims Verizon’s offer was akin to a digital Trojan Horse — a gift to rural operators on the outside, but one that benefits Verizon far more than rural carriers on the inside.

“Verizon’s Plan provides a limited number of rural carriers with nominal opportunity to add or extend their 4G coverage in a way that only fills Verizon’s coverage gaps. Additionally, Lower A licensees paid a significant amount of money for their spectrum, more than Verizon paid for the C block per MHz/pop, and have stringent geographic-based build-out requirements,” Rebecca Murphy Thompson, the rural carriers’ general counsel wrote the Commission. “Considering these strict build-out requirements, Cellular South will focus on building its own business, not helping Verizon expand its network.”

The Rural Cellular Association (RCA) also continued its campaign against what it sees as anti-competitive behavior on the part of AT&T and Verizon.

“In addition to interoperability, RCA described how its members have limited options to obtain nationwide data roaming, but their customers still expect nationwide coverage and comparable services to their urban counterparts. Larger carriers are blocking rural and regional carriers from obtaining data roaming with reasonable terms and conditions because there is no regulatory mandate. RCA plans to supplement the record to provide examples of how AT&T and Verizon have blocked rural and regional carriers from negotiating data roaming agreements with reasonable rates. After a year of negotiations, Cellular South now has a data roaming agreement with one of the larger carriers.”

Lauderdale County, Miss.

For rural America, unaccustomed to getting good cellular coverage, the presence of rural carriers specifically targeting underserved communities as their main business function is a welcome change from “extended service” provided by larger carriers, mostly for travelers, as an afterthought.  These smaller carriers also often deliver savings in the communities they serve.

In Lauderdale County, Mississippi, the Board of Supervisors met earlier this week to review potential savings of at least $10,000 a year for the county sheriff’s department, just by ditching AT&T for Cellular South.  While Sheriff Billy Sollie had no objections to that, a follow up discussion about what to do with the savings started an on-camera debate that quickly descended into personal attacks and traded accusations.

District 5 supervisor Ray Boswell and Sheriff Sollie turned the meeting into a spectacle with allegations of drug and alcohol abuse, illegal use of county property, culminating in claims the sheriff was a “crybaby” and “a disgrace.”  A sheriff’s deputy even joined in at one point, yelling at Boswell for making unsubstantiated allegations and suggesting Boswell was arrested on felony charges but had his record expunged.

While other members of the board, including its president, sat stunned into silence, no one bothered to gavel the shouting match out of order.  The resulting 15 minutes of fame has created a sensation, and many area residents are embarrassed and upset.

Cellular South will probably win the county’s business, but heaven help the customer service representative that takes a call from Ray Boswell about a service problem.

[flv]http://www.phillipdampier.com/video/Lauderdale County Meltdown 12-6-10.flv[/flv]

Watch for yourself as a county meeting descends into chaos.  As it goes from bad to worse, nobody bothered to intervene to stop the escalating accusations and counter-accusations that have since become an embarrassment for residents of Lauderdale County, Miss.  (18 minutes)

AT&T wireless broadband customers who thought they could survive a smartphone data plan with only a 200MB usage allowance are discovering $15 overlimit fees applied to their bill because of mystery data usage consumed while they were asleep.

Stop the Cap! reader Pat dropped us a note to say she accumulated a whopping $45 in overlimit fees on her August bill for her family’s three iPhones because they exceeded their 200MB usage allowances while the family was unconscious:

At around 2AM most mornings, our phones regularly show usage of around 5-10MB each even though they are being charged and are not used by anyone in the family.  At first my husband thought an application on the phone was automatically exchanging data so we tried switching off 3G access and relied exclusively on Wi-Fi access, to no avail.  Sure enough, for the next seven days in a row, the phones all used between 5-10MB of usage.  We tried disabling and removing various applications and told others only to communicate manually.  That didn’t work either.  The mystery usage remained.

We contacted AT&T multiple times about this issue, because this usage easily put us over the limit, at which point AT&T bills a $15 penalty to buy you another 200MB of usage.  We got a lot of excuses, one month’s credit, but no answers.  One representative used the opportunity to try and upsell us on the 2GB plan to “avoid this from happening.”  It sounds like a nice scam.

Pat, it turns out this has been a significant issue for many AT&T customers dating back to the June introduction of the usage-limited smartphone data plans from AT&T.  We found threads on both AT&T and Apple’s websites running well into the dozens of pages, with nobody getting a definitive, consistent answer as to why this keeps happening.

In late July, the folks at Gizmodo got a statement from AT&T about the problem:

This is a routine update of your daily data activity on your device to ensure the accuracy of your data billing. Customers are not charged for data usage, given that no data session is generated. It’s not uncommon for devices that are ‘always on’, like iPhone, to process data event records for billing purposes after a certain amount of inactivity or after long periods of time. It’s also separate from how our system lets you monitor your data consumption.

Unfortunately, it’s also apparently inaccurate because subsequent comments indicate customers were, in fact, billed for that usage.

Customers have been told a variety of things to justify AT&T’s usage billing:

1. It’s an application on your phone polling for data and/or updates;
2. Your phone is sending and receiving e-mail;
3. If your phone goes “to sleep” it switches away from Wi-Fi and back to AT&T’s 3G usage, incurring data usage fees;
4. In the early morning, AT&T communicates with phones to exchange updates and data;
5. The usage reports represent cumulative usage made during the day but only later reported to AT&T;
6. It’s iTunes diagnostic information you agreed to share with Apple being sent to them every night;
7. It’s Apple’s fault.

The biggest problem? AT&T’s stingy usage allowances.  Many customers do not understand what a megabyte represents, but 200 of them sounds like a lot… until you browse to a page with multimedia content or utilize an application that exchanges a lot of data during the day.  AT&T has really not addressed the problem, other than to throw $10 credits to customers who complain the loudest.  Many just upgrade to the higher priced 2GB plan and hope the problem goes away.

AT&T’s Internet Overcharging scheme for wireless has trained customers to use less of a service they pay good money to receive:

• Customers think twice before installing and using data applications that could consume too much of their allowance;
• Customers train themselves to jump off of AT&T’s 3G network and switch to Wi-Fi wherever possible, despite paying for AT&T’s wireless data network;
• Customers quickly learn paying more for a more “generous allowance” is a “better value,” saving them the time and hassle of worrying about overlimit fees;
• Customers can complain all they like, but in the end they’ll grumble and pay the bill, facing exorbitant early termination fees if they want out of AT&T’s fee maze.

Unfortunately, without a team of lawyers or regulatory agencies breathing down AT&T’s neck to deliver a credible response to these overcharges, they are very likely to continue.  Although AT&T claims the 200MB usage plan was designed to save customers money and attract new users to smartphones, it’s no mistake the cheapest plan delivers a minuscule allowance.

The company knows very well that smartphone data usage increases as the phones and the software that runs on them become more sophisticated.  Customers delivered a tasty sample of 3G usage are likely to enjoy it and find themselves upgrading to a more profitable data plan with a comparatively larger allowance.  If they don’t, AT&T wins again because customers face paying at least $30 for 400MB of usage, even though a 2GB plan would have only set them back $25.

For now, the best we can recommend is completely powering off the phone overnight and seeing if it still incurs any phantom charges.  You should also complain, regularly and loudly, to AT&T each time it happens.  Contact your state Attorney General and file a complaint if AT&T’s answers are unsatisfactory and urge their office to begin an investigation.

As Stop the Cap! has said from day one, Internet Overcharging schemes force customers to spend time and energy doublechecking usage gauges that may or may not be accurate and make you think twice about everything you do online, wondering what it will ultimately do to your bill at the end of the month.  It’s all a win for service providers, who get the benefit of conservative usage from the “think-twice” mindset and revenue enhancing overlimit fees from those who never worry.  You lose either way.

Frontier's Maggie Wilderotter escapes reality

Frontier Communications CEO Maggie Wilderotter has bought a first class ticket to Fiber Fantasy Island, where phone companies dream of delivering fiber-optic broadband service without actually deploying fiber.  They just tell you they did.

In an interview published today in The Oregonian, Wilderotter tries to convince residents Frontier’s arrival is good news, making promises about broadband and service improvements based on a company track record an independent observer would conclude she simply made up.

If Wilderotter’s command of the facts about her own company are reflective of “a distinct, improved image in its new territories,” Oregon is in big trouble.

Let’s review:

CLAIM: “We deploy fiber to the home all across the country. We don’t call it FiOS. We call it high-speed Internet. For our customers, the technology doesn’t matter. What matters is access, speed and capacity.”

REALITY CHECK: Frontier, as far as we have been able to determine, has not deployed fiber to the home anywhere in the country, with the exception of the FiOS network it acquired from Verizon.  Frontier Communications’ deployment of fiber optics to the home is comparable to the amount of fiber found in a box of Cookie Crisp cereal.  In their largest market, Rochester, N.Y., Frontier relies on the same legacy copper wire phone network it utilizes everywhere else.  It is highly misleading for Wilderotter to represent otherwise.  Fiber to the home means exactly that — fiber optic cable brought right to the home.  This is not a case of “you call it corn, we call it maize.”

This kitten is not an iguana.

Fiber optic cable is not also known as “high-speed Internet,” just as the cute kitten on the left is not called an iguana.  For the significant number of customers who ask Frontier to disconnect their service year-after-year, technology matters very much, and this particular phone company lacks it.  Frontier relies on the same DSL technology other phone companies and customers increasingly consider yesterday’s news.

In many Frontier service areas, there is no access to broadband because line quality will not support the service.  In Brighton, N.Y., a suburb of Rochester less than a minute from the Rochester city line, Frontier could only manage to deliver 3.1Mbps DSL speeds, and until recently Frontier was crying it needed a 5GB usage allowance because of the threat higher amounts of consumption might have on its network capacity.  Access, speed, and capacity does matter, which is why Time Warner Cable is picking up the bulk of its new broadband subscribers at Frontier’s expense.

CLAIM: “For high-speed, it means having speed and capacity in addition to reach. We’ll do add-on services. We have a terrific Yahoo-Frontier portal that will be a gateway on our high-speed Internet service. We are in the throes of putting together Wi-Fi hotspots that will be distributed throughout this market for customers.  If you’re a high-speed Internet customer of ours it’s free. We’re looking to put one at Hillsboro Stadium. Typically, we put them in hotels, convention centers, truck stops, trailer parks, outside parks, campuses for colleges, shopping centers, business campuses.”

REALITY CHECK:  Those “add-on services,” such as Frontier’s Peace of Mind, come with a price tag and are often required components of a bundled service discount offer.  As first impressions go, a company still relying on Yahoo! for a front end is not exactly on the cutting edge, nor are “portals.”  It’s like trying to impress new customers with free web space through GeoCities.  Actually, that is something Frontier could offer because GeoCities is now owned by Yahoo!

Frontier’s Peace of Mind Services

• Hard Drive Backup: $4.99 per month
• Hard Drive Backup + Unlimited Technical Support: $9.99 per month
• Hard Drive Backup + Unlimited Technical Support + Inside Wire Maintenance: $12.99 per month
• $50 early cancellation penalty if you get these services with a term commitment

Rochester’s experience with Frontier Wi-Fi has not been very impressive.  Most residents don’t even know the service exists.  The city and several suburbs offer limited Frontier pay-walled Wi-Fi service and a handful of free access hotspots in cooperation with Monroe County.  Unfortunately, many of the fee-based and free hotspots have fallen into disrepair and no longer function.  Signal strength is not impressive either, and many were not usable indoors.  We tested several of the free hotspots and discovered one only delivered a signal into a suburban parking lot, another only into an empty soccer field, and the third was not functioning at all.  Frontier’s record in Wi-Fi delivered more promises than actual service.

Those Wi-Fi services, by the way, are not free for all Frontier broadband customers.  Evidently Ms. Wilderotter is not acquainted with her own company’s products and services, nor Frontier’s own website:

So much for Wilderotter's claim Frontier's Wi-Fi network was free for all Frontier broadband customers.

CLAIM: “We deliver the highest value for the price you pay. We also have excellent customer service. We also don’t raise our rates every 12 months, no matter what.”

REALITY CHECK:  In Rochester, the out-the-door price Frontier charges its broadband customers is actually higher than that charged by Time Warner Cable, which delivers far faster connections.  In West Virginia, the state’s Consumer Advocate put together a chart depicting Frontier’s broadband prices.  Determine for yourself if it delivers the “highest value for the price you pay.”

Comparing Prices: Frontier's pricing doesn't look as exciting as Wilderotter would have you believe, as the West Virginia Consumer Advocate discovered

CLAIM: “If I look across the board at our basic service pricing, I don’t think we’ve raised prices anywhere in the last four or five years.”

REALITY CHECK: We looked and found Frontier demanding the right to increase basic service rates in New York by $2 a month each year for up to two years.  In fact, last November, the New York State Public Service Commission, at the request of Frontier, sent the company a letter authorizing a rate hike of $2 a month for customers in the state.  Even more enlightening was Frontier’s filing in August 2005 with the PSC demanding near-complete deregulation and rate relief allowing Frontier to raise rates up to $1 per month annually indefinitely for basic service.  Frontier also wanted consumer protection rules “relaxed” and ban the PSC from investigating consumer complaints.  One of the reasons they cited is that basic phone service is not the same critical service it used to be because people can communicate through blogs instead.

In fact, consumers should be asking why Frontier’s rates haven’t decreased.  From that same filing: “Frontier believes that with the decreasing costs and increasing bandwidths of new technologies and the acceleration of intermodal market entry, the market will cause rates for non-basic services in all parts of the State to decline.”

CLAIM: Local regulators tell me they did see a spike in billing complaints after Verizon took over. Any thoughts on why? — “Whenever there’s a change — you change the name on the bill, you change the format — customers tend to look at it more closely. We always expect a spike in billing calls whenever we’ve done acquisitions. It has already (settled out).”

REALITY CHECK: As Stop the Cap! has reported, Frontier’s takeover in West Virginia has hardly “settled out.”  Service interruptions, forgotten service calls, and other problems have plagued the state to the point the PSC needed new hearings to review the situation.  Many of Frontier’s billing complaints come from customers choosing to cancel Frontier service, only to find unjustified early termination fees added to their final bills, even when customers never agreed to a term contract.  That problem was so serious in New York, the state Attorney General fined the company and ordered customer refunds.  Changing a customer’s bill by adding $100 or more to the total amount due will always get a customer to look at the bill more closely.

CLAIM: “One of the big opportunities that we’re working on is the ability to display Internet content and video on the television set.”

REALITY CHECK: That “big opportunity” has been available to broadband users for several years now.

CLAIM: We also have a new site that’s called myfitv.com. We carry over 100,000 titles of free television content on this site. It’s a little bit like Hulu on steroids. It’s provided free of charge to all our customers.

REALITY CHECK: MyFitv is not “a little bit like Hulu on steroids.”  In fact, it is Hulu.  Frontier simply used Hulu’s “embed” feature to take content, slap the Frontier logo on it, and add Google ads in an attempt to rake in a few extra dollars.  You can do exactly the same thing yourself.  Meanwhile, the service is added to customer bills showing an amount of $0.00, a very inexpensive way to try and impress customers with content Frontier never developed, deployed, or created — just like their phantom fiber to the home network.

CLAIM: “We think over time the Internet will also provide different packaging, different prices, different ways to buy content than the traditional viewing platform. We also think that mobility is important. We want to make sure that whatever you do you’ll be able to take it with you.  The Sling technology is interesting, too. It’s something we’re talking about DISH Network with.”

REALITY CHECK: Every time Maggie has talked about “different packaging and prices,” it has been in the context of an Internet Overcharging scheme — limited usage allowances, extremely high rate increases for those deemed to have consumed too much, etc.  And yes, Sling technology is interesting.  A company conceived of the idea, built it, developed a marketing plan, and sold it.  That’s a concept Frontier needs to understand.  You cannot transform a legacy network with words alone.  Here’s an idea.  How about conceiving of a real fiber-to-the-home network, build one, develop a marketing plan, and then sell it.  For those in markets like Rochester, it’s the only way Frontier Communications will avoid becoming the horse and buggy carriage maker of the 21st century.

CLAIM: You’re around Seattle, around Portland, but not in them yet. Is there any possibility that Frontier would build into another company’s market? — “There’s always a possibility. It’s not a priority for us. And the reason why it’s not a priority is we’ve got a lot to do, just in the service areas that we own today. When I’m humming on all cylinders there, and I’ve been able to do everything I possibly can in those areas, then I might look to extend service areas out.”

REALITY CHECK: Translation — “when pigs fly.”  Frontier would be laughed out of the Seattle and Portland markets.

Ms. Wilderotter needs to be a lot more open and forthcoming with the press.  Frontier’s business plan makes it clear the company’s future is serving uncompetitive rural markets that will be forced to tolerate the products and pricing Frontier delivers.  Where competition exists, let’s face facts.  Frontier is not gaining market share — it is losing it, eroded away year after year by uncompetitive, substandard products at high prices.

That’s a reality you are bound to miss if you spend too much time with Mr. Rourke and Tattoo.

Clearwire this week changed their terms and conditions governing the use of their service.  The changes are sufficiently materially adverse that subscribers under contract should be able to cancel service, if they wish, without incurring any early termination fee.

The most prominent change is Clearwire’s ability to crack down on whatever they define “excessive usage” to be, and the redefining of ‘unlimited service’ as ‘limited and speed throttled service.’

All-New to the Clearwire Terms & Conditions:

Nature of the Service.The Service provided to you is intended for reasonable, periodic, non-continuous use by a person using a computing device, consistent with the type of use made by a typical individual consumer of our Internet services. Examples of allowed uses of our Service include web surfing, sending and receiving email, sending and receiving photographs, occasional on-line gaming, and the occasional non-continuous streaming of videos and downloading of files. Examples of uses that are not permitted include the continuous unattended streaming, downloading or uploading of videos or other files, maintaining an unattended or continuous uninterrupted connection to the Internet such as through a web camera or machine to machine connections that do not involve active participation by a person, or operating an Internet hosting service such as web hosting or gaming hosting. You may not use the Service in a manner that impairs the user experience of other users, or that otherwise impairs network performance. Both fixed wire-line Internet service and wireless Internet service have limited bandwidth capacity. Like fixed wire-line service, CLEAR’s Service can suffer from congestion and reduced performance when usage by some individuals exceeds the usage of typical individual consumers, thus having a negative impact on the entire network. This AUP is intended to ensure that the activities of a few users do not unfairly impair the activities of all users of the Service.

Clearwire’s unlimited use plans have always carried a clause giving the company the right to terminate or suspend service for exceptionally excessive usage, after several contacts with customers.  The old language:

Unlimited Use Plans. (Effective January 9, 2009)

While the determination of what constitutes excessive use depends on the amountspecific state of data you may download or upload during a monththe network at any given time, you shouldexcessive use will bethat such unlimited” plans are nevertheless subject todetermined by resource consumption and not by the provisionsuse of this AUPany particular application. What this means is that allWhen feasible, upon observation of the provisions described in this AUPan excessive use pattern, including those that describe how Clearwire may perform reasonable network management such as reducingwill attempt to contact you by e-mail at the data ratee-mail address on file or otherwise to alert you to your excessive use of bandwidth intensive users during periodsand to help determine the cause. Clearwire representatives also are available to explain the parameters of congestion, will applythis AUP and to yourhelp you avoid another excessive use incident or to upgrade you to a different class of the Service that comports with your usage. The term unlimited” means that we willIf you are unavailable or do not place a limit on how much datarespond to Clearwire’s attempt to contact you uploadregarding excessive use, or download during a monthif excessive use is ongoing or other particular periodrecurring, howeverClearwire reserves the right, it does not mean that we will not take stepsset forth in the “AUP Enforcement and Notice” provisions below, to reduce your data rate during periods of congestionact immediately and without further notice to restrict, suspend or take other actions described in this AUP whenterminate your usage is negatively impacting other subscribers to our Service.

The new language now permits the company to use “network management” techniques such as reducing your speed if they feel you are excessively using Clearwire’s “unlimited” service.  Although the new language sounds friendlier — deleting references to suspending or terminating your service — Clearwire’s Acceptable Use Policy (AUP) maintains those rights in another section.  When all is said and done, Clearwire still gets to limit your usage -and- can now also reduce your speed:

Unlimited Use Plans. (Effective November 22, 2009)

If you subscribe to a service plan that does not impose limitsWhile the determination of what constitutes excessive use depends on the amountspecific state of data you may download or upload during a monththe network at any given time, you shouldexcessive use will be aware that such “unlimited” plans are nevertheless subject todetermined by resource consumption and not by the provisionsuse of this AUPany particular application. What this means is that allWhen feasible, upon observation of the provisions described in this AUPan excessive use pattern, including those that describe how Clearwire may perform reasonable network management such as reducingwill attempt to contact you by e-mail at the data ratee-mail address on file or otherwise to alert you to your excessive use of bandwidth intensive users during periodsand to help determine the cause. Clearwire representatives also are available to explain the parameters of congestion, will applythis AUP and to yourhelp you avoid another excessive useincident or to upgrade you to a different class of the Servicethat comports with your usage. The term “unlimited” means that we willIf you are unavailable or do not place a limit on how much datarespond to Clearwire’s attempt to contact you uploadregarding excessive use, or download during a monthif excessive use is ongoing or other particular periodrecurring, howeverClearwire reserves the right, it does not mean that we will not take stepsset forth in the “AUP Enforcement and Notice” provisions below, to reduce your data rate during periods of congestionact immediately and without further notice to restrict, suspend or take other actions described in this AUP whenterminate your usage is negatively impacting other subscribers to our Service.

Clearwire (and the soon-to-be-launched Road Runner Mobile from Time Warner Cable and Comcast’s mobile broadband option) share the same Clearwire WiMax network.  As investors in Clearwire, the cable operators have won the right to rebrand the service to provide a mobile option for their broadband customers.

Customers considering signing up for service should carefully verify the terms and conditions of their contract, as well as the quality of service provided where you expect to use the service the most.  Several websites highly critical of Clearwire have been established with hundreds of upset customers who were promised broadband speeds and barely managed much more than dial-up speeds using the service.

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“Clearwireblows” ran a speed test illustrating serious speed problems using Clearwire in Texas this past April.  (2 minutes)

Customers who wish to end their contract without incurring a cancellation fee can do so following this procedure:

1. Contact Clearwire in writing and inform them you are exercising your right to terminate service without charge or penalty because of materially disadvantageous changes to the Clearwire Terms and Conditions effective November 22, 2009.  Under their terms, you have a right to discontinue service in accordance with the section “Revisions: Reservation of Rights.”  Namely, “…if you do not wish to continue Service after a change that is materially disadvantageous to you, you may terminate this Agreement by providing written notice to Clearwire within twenty (20) days of the effective date of the modification.”  The link above contains contact addresses you may use.
2. Contact customer service by telephone and inform them you have followed the written cancellation procedure outlined above.
3. Be certain to insist Clearwire not charge any termination fees, and that you do not agree to pay any such fees.
4. Should you experience any difficulties, contact the Better Business Bureau as this customer did.  The BBB helped facilitate an immediate cancellation with no termination fees.