Time Warner Cable has a usage meter up for some customers.

New York City area residents browsing through the My Services section of the Time Warner Cable website had an unwelcome introduction to the company’s new Usage Meter, located under the My Internet tab.

Time Warner has been gradually rolling out the “activity tracker” to all of its service areas, ostensibly for its Internet discount plan Internet Essentials, which offers a $5 discount to customers who keep their monthly usage under 5GB per month.

Although the company insists customers will not lose access to unlimited service (but does not indicate what customers could eventually end up paying for it), the usage meter is not well-received, particularly by customers who found it completely inaccurate.

One customer reported their Time Warner meter showed 161MB of usage… in July, with no usage since.

A Fairview, N.J. Broadband Reports reader was even more concerned to discover the cable company counted 4GB of usage between Oct. 28 and Oct. 31. That was a remarkable feat, according to the customer, because his service was knocked out during that time by Hurricane Sandy. Perhaps the hurricane wanted to stream some old episodes of Jersey Shore to contemplate its “before and after” strategy.

Time Warner’s meter, like that of every other cable or phone company provider, is not subject to independent review or audit by a neutral third party or government oversight. Some companies claim to have third-party verification through outside companies, but critics contend those outside entities have a direct financial interest reporting results that are positive to the company that paid for the review.

Time Warner’s maze of explanations and excuses still don’t add up.

Instead of waiting for the outcome of a class action case against Time Warner Cable’s new $3.95 monthly modem fee, readers might do better taking their case direct to the company. Longtime Stop the Cap! reader “PreventCAPS” rattled the cages of Time Warner’s social media customer service representatives, which resulted in credits worth six months of modem rental fees.

Our reader tells us he brought pointed questions about the modem fee, complaints about the inconsistent reasons for imposing them, and irritation about the lack of notification.

Some Q&A:

Q. Why is Time Warner Cable now charging a modem fee? Earlier reports that the fee would cover the cost of equipment do not make sense because the company is not automatically supplying customers with new cable modems and already assesses $24-150 penalty fees to “cover costs” of damaged or unreturned cable modems. 

A. Time Warner Cable now says the fee is to cover the costs of increasing broadband speeds. A representative explained that the company wants to make sure everyone can be assured of getting the speeds advertised, and there are still customers with DOCSIS 1x equipment that can only support broadband speeds up to 9Mbps, which already conflicts with the company’s advertised 10Mbps Standard Service speed (soon to be 15Mbps).

Our Take: DOCSIS 1x equipment was recalled from western New York customers years ago. It was first introduced locally in 1998 and is long past its expiry date. It is a safe bet only a very tiny percentage of Time Warner customers still have first generation equipment. The overwhelming majority of current broadband customers have DOCSIS 2 modems, many installed years earlier. Those customers will keep that equipment for years to come unless they choose to upgrade to 30/5Mbps speeds or higher because a DOCSIS 3 modem is required for faster speeds. Our reader pointedly asked if the new modem fee guarantees every customer will receive the newest equipment and increased service. The answer in response was “no.”

These phony explanations and justifications tapdance around the reality this modem fee is being introduced as a revenue enhancer — nothing more, nothing less.

Customers are not buying this!

Q. Why is the list of supported DOCSIS 3.0 modems so thin and limited?

A. The representative speculated the reason Time Warner Cable so heavily favored Motorola equipment came from contractual support agreements and guarantee obligations with that company. But the representative claimed Time Warner Cable “will activate and support any modem model they currently lease to customers.”

Our Take: This claim represents a new development, but one unlikely to prove consistent across the country. Time Warner Cable’s national call centers have employees currently trained to activate and support only those modems on the approved list. However, local technical support and “Tier 3” agents inside of local offices seem to have a more flexible attitude about accepting other equipment. This is a classic case of “your results may vary.”

Q. Why are there modem fees for Internet service but no modem fee if I use the exact same equipment for my Time Warner Cable phone service.

A. The representative claimed it has to do with Federal Communications Commission rules governing phone equipment.

Our Take: We are not certain what rules would apply in this case, but it is possible the company’s lawyers found some “exposure” if Time Warner began charging the fee for phone service equipment. Again, we suspect the fee applies to broadband primarily because it is the service customers are least-likely to cancel over a price hike. Phone service is more tenuous. Increase the price and disconnect requests are likely to rise.

Q. Why are these fees being instituted to “cover costs” when records show capital expenses for Internet service (and cable modem equipment) have dropped for the past three years in a row?

A. The representative claimed that capital costs don’t cover cable modems.

Our Take: That answer is completely inaccurate. Nice try. Stop the Cap! earlier reported that capital expenditures for customer premise equipment dropped for the last three years in a row. For the benefit of readers (and Time Warner Cable), here is the company’s own definition of that equipment¹:

“Such equipment includes digital (including high-definition) set-top boxes, remote controls, high-speed data modems (including wireless), telephone modems and the costs of installing such new equipment.”

 ¹- Time Warner Cable 2011 Annual Report, “TWC’s capital expenditures,” p.60

Two class-action lawsuits were filed Tuesday on behalf of Time Warner Cable customers in 29 states to force the company to refund ill-gotten modem rental fees in violation of consumer fraud laws.

“It’s a massive hi-tech consumer fraud accomplished by low-tech methods,” said attorney Steven L. Wittels. “Send customers confusing notice of the fee in a junk mail postcard they’ll throw in the garbage, sock them with a $500 million dollar a year rate hike, then announce on your website that customer satisfaction is your #1 priority. That’s some way to deliver satisfaction.”

The context for the class action suit is that Time Warner Cable began imposing the fee Nov. 1 without giving customers appropriate notification. New York City residents had little more than two weeks notice in the form of a poorly printed postcard. Some residents in western New York and other cities have still not received notification from the cable company, either on bills or in the mail.

The two lawsuits were brought on behalf of Manhattan resident Kathleen McNally and Fort Lee, N.J. resident Natalie Lenett, but the suit asks the court to order refunds for all Time Warner Cable customers charged modem fees across their national service area.

The Consumerist thought the company’s failure to meet the timely notification requirement about the forthcoming modem rental fee might have the cable company dead to rights:

Pricing and Service Changes

Unless otherwise provided by applicable law, Time Warner Cable will notify you 30 days in advance of any price or service change. Notice of these changes may be provided on your monthly bill, as a bill insert, as a separate mailing, in the Legal Notice section of the newspaper, on the cable system channel(s) or through other written means.

But on closer examination, that provision only applies to pricing and service changes for Time Warner Cable’s television service, not broadband or home phone service.

In fact, Time Warner Cable’s new Subscriber Agreement has reserved the right to change just about anything it likes, just by updating the terms and conditions on its website:

We May Change our Customer Agreements

(a) We may change our Customer Agreements by amending the on-line version of the relevant document.  Unless you have entered into an Addendum that ensures a fixed price for a period of time (for instance, a Price Lock Guarantee Addendum), we may also change the prices for our services or the manner in which we charge for them.

(b) If you continue to use the Services following any change in our Customer Agreements, prices or other policies, you will have accepted the changes (in other words, made them legally binding).  If you do not agree to the changes, you will need to contact your local TWC office to cancel your Services.

(c) Any changes to our Customer Agreements are intended to be prospective only.  In other words, the amended version of the relevant document only becomes binding on you as of the date that we make the change.

One significant change Time Warner inserted in its Subscriber Agreement (the one printed in tiny print on tissue-thin paper, occasionally mailed with your bill) was deemed so important, it appears highlighted and in bold language:

Time Warner Cable now requires customers to submit disputes individually to binding arbitration, denying the right to bring or participate in any class action case. However, customers can opt-out of this provision simply by notifying the company through an online form. (You will need your Time Warner Cable account number.)

In practice, this would require McNally, Lenett, and millions of other customers to individually submit to a time-consuming arbitration proceeding — all to fight a $3.95 monthly fee. Few would bother. Wittels told The Consumerist the lawsuit still has merits because of other language Time Warner Cable maintains in its agreement which he believes holds the door open to a class action challenge.

Although customers are invited to purchase their own cable modem equipment to avoid the fee, the lawyers involved say the options are limited and expensive.

Google recognizes that television lineups still matter. The Kansas City gigabit fiber broadband project is not just about faster Internet access, and some KCMO and KCK residents have made it clear if Google Fiber lacks the television channels they want to see, they won’t switch providers.

Since late summer, Google has been quickly signing deals with the remaining holdout programmers to present a television lineup nearly equivalent to what its competitors Time Warner Cable and AT&T U-verse offer.

In early September, Google announced an important deal with Disney which brought ABC Family, ABC News Now, Disney Channel, Disney Junior, Disney XD, ESPN, ESPN Buzzer Beater, ESPN Classic, ESPN Deportes, ESPN Goal Line, ESPN2, ESPNews, and ESPNU to the lineup. The company also signed deals for the important regional sports channel The Longhorn Network, and niche channels Ovation, SOAPnet, TBN, TBN Enlace, and Velocity.

In mid-September, additional deals with Time Warner (Entertainment) and its Turner division netted Google Fiber TV: Boomerang, Cartoon Network, CNN, CNN en Español, CNN International, HLN, hTV, infinito, MLB Network Strike Zone (as part of an add-on package),TBS, TCM: Turner Classic Movies, TNT and truTV.

On Monday, Google landed a deal with News Corp., parent company of Fox, for a bunch of additional sports, news, and general entertainment channels. The latest additions: BabyTV, Big Ten Network, Fox Business Network, Fox College Sports Atlantic, Fox College Sports Central, Fox College Sports Pacific, Fox Deportes, Fox Movie Channel, Fox News Channel, Fox Soccer, Fox Soccer Plus, FS Kansas City, Fuel TV, Speed and FX. Other additions also announced: HSN2, KPXE-TV DT2 – Qubo, KPXE-TV DT3 – ION Life, Nat Geo Mundo, Nat Geo WILD, National Geographic Channel, and Utilisima,

The deal for Fox programming shows Google and News Corp. coming full circle. News Corp. used to call Google a “parasite” for aggregating copyrighted content in search engine results and other features. Google opposed broad-reaching piracy legislation earlier this year. News Corp. was a strong supporter.

The latest programming deals narrow the gap between Google and its television competitors. The most notable remaining network missing from the lineup is HBO. Google has also yet to conclude a deal with AMC Networks, which shares close ties with Cablevision Industries. Until Google reaches an arrangement, AMC, the Independent Film Channel, WEtv, and the Sundance Channel will not be on the Google TV lineup.

Time Warner Cable has expanded the list of modems approved for customer purchase. Buying your own cable modem will exempt you from the company’s $3.95/month modem rental fee, applicable to all but customers on special promotions or the elite Signature Home tier.

The Motorola SB6121 ($79) is back on the approved list, although customers intending to aggressively upgrade speeds as Time Warner introduces faster tiers may be happier with the Motorola SB6141 ($99), which supports more bonded channels than its lesser counterpart. The models from Netgear and Zoom were undistinguished in customer reviews — the Zoom for a noticeable number of reports complaining about the product’s short longevity and the Netgear for compatibility issues, poor quality control, and irritating customer/technical support.

Stop the Cap! continues to recommend the Motorola SB6141, which delivers top-rated performance and is future-proof with support for up to eight bonded data channels — 300Mbps service. Although still expensive on Amazon.com, increased competition has dramatically cut pricing on eBay at “Buy It Now” prices ranging between $86-100 at time of writing. This means no bidding hassles, no upfront sales tax, and free shipping for most buyers. The Motorola 6141 is what we use here at Stop the Cap!, acquired from an eBay vendor for $99. Now you can do even better.