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AT&T Threatens To Shut Off Service of Customer Who Won Throttling Case 327

Posted by Unknown Lamer
from the unlimited-within-limits dept.
suraj.sun writes in about the recent small claims case against AT&T's throttling of 'unlimited' plans. From the article: "AT&T has about 17 million smartphone customers on 'unlimited' plans, and has started slowing down service for users who hit certain traffic thresholds. Spaccarelli maintained at his February 24 small-claims hearing that AT&T broke its promise to provide 'unlimited' service, and the judge agreed. In a letter dated Friday, a law firm retained by AT&T Inc. is threatening to shut off Matthew Spaccarelli's phone service if he doesn't sit down to talk. Spaccarelli has posted online the documents he used to argue his case and encourages other AT&T customers copy his suit."
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AT&T Threatens To Shut Off Service of Customer Who Won Throttling Case

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  • Duh? (Score:5, Insightful)

    by MightyYar (622222) on Wednesday March 14, 2012 @12:32PM (#39353953)

    I have no love for AT&T and I'm glad the guy won, but if one of my customers sued me, I'd drop them in a heartbeat!

    • Re:Duh? (Score:5, Interesting)

      by teknopurge (199509) on Wednesday March 14, 2012 @12:38PM (#39354049) Homepage

      I have no love for AT&T and I'm glad the guy won, but if one of my customers sued me, I'd drop them in a heartbeat!

      If you're not falsely-advertising your services, then you have nothing to worry about.

      We run a hosting company and have been putting up with this for years. We provide underloaded servers that have packages with hard limits to prevent abuse and to ensure people get what they pay for. All these "unlimited" hosting plans have been scams from day-1 and we're glad someone is finally getting held to task for the dumbing down of the market.

      • Re:Duh? (Score:5, Insightful)

        by tripleevenfall (1990004) on Wednesday March 14, 2012 @01:08PM (#39354485)

        AT&T isn't really advertising falsely, the data is unlimited. The speeds are limited.

        They should be ordered to clarify their advertising and say "3G speed up to 2GB" or similar.

        • Re:Duh? (Score:5, Informative)

          by LoudNoiseElitist (1016584) on Wednesday March 14, 2012 @01:21PM (#39354663)

          The data isn't unlimited, either.

        • Re:Duh? (Score:4, Insightful)

          by naasking (94116) <naasking@gmail.c3.1415926om minus pi> on Wednesday March 14, 2012 @01:21PM (#39354667) Homepage

          AT&T isn't really advertising falsely, the data is unlimited. The speeds are limited.

          Which means the data is effectively limited as well. If you sell "unlimited plans" and then throttle speeds to the point where downloading 24/7 for a month will only net you 1GB of data, that's not very unlimited is it?

        • AT&T isn't really advertising falsely, the data is unlimited. The speeds are limited.

          They should be ordered to clarify their advertising and say "3G speed up to 2GB" or similar.

          It's misleading at-best.

        • Re:Duh? (Score:5, Funny)

          by Bengie (1121981) on Wednesday March 14, 2012 @01:35PM (#39354877)

          "AT&T isn't really advertising falsely, the data is unlimited. The speeds are limited."

          If I had an "unlimited" data plan, but after 5GB, I reduced your speed to 0, it's still unlimited, just relative to the new current rate.

          • Re:Duh? (Score:5, Insightful)

            by Anonymous Coward on Wednesday March 14, 2012 @01:46PM (#39355063)

            Which is what we're talking about here...

            Since they don't CLEARLY disclose that it's "unlimited data" in their advertising, it's misleading at best. This is why they lost the damn lawsuit- you can't advertise it one way and then take it basically away in the fine print- that's called bait-and-switch and it's illegal.

            I honestly wish people would QUIT trying to follow the weaseling that the companies use- the law is rather explicit on this subject,

            "Unlimited" means just that- that they're not limiting the use of the resource to it's fullest. "Unlimited data" isn't even accurate as they're actually limiting just how much data you can consume by throttling. So, folks, QUIT running that one up the flagpole. Doesn't match the reality of things. Doesn't match their requirements per law.

        • Re:Duh? (Score:4, Funny)

          by Anonymous Coward on Wednesday March 14, 2012 @01:43PM (#39355011)

          AT&T isn't really advertising falsely, the data is unlimited. The speeds are limited.

          >

          Only your bill is unlimited.

        • Re:Duh? (Score:5, Insightful)

          by GameboyRMH (1153867) <gameboyrmh@gm[ ].com ['ail' in gap]> on Wednesday March 14, 2012 @01:53PM (#39355181) Journal

          You are wrong, but at the same time it's true that unlimited isn't truly unlimited. Here's how it works.

          Say you're on a "true unlimited" monthly data plan, and you get a download speed of 100kbps. You're actually buying 1 month's worth of data @ 100kbps, or about 259gb. Now that number is not infinity but that's what people expect when you say unlimited - unlimited data at the advertised speed, the only limitation being time itself. If you offer a 100kbps plan that doesn't let you download 259gb per month, and call it unlimited, that's when people will feel that they've been lied to. There is not only the natural limitation of time, but also you're not delivering the advertised speed.

          • Logically, we all know "Unlimited" is silly. Simply substitute "Unlimited" for "Infinite" and you can see how unrealistic the concept is. Your reasoning also shows what a farce "Unlimited" is, as well.

            I think what most people assume they're getting when they buy an "Unlimited" product is they are able to consume as much of that product as they possibly can. When you buy "Unlimited" data, or "Unlimited" texts, "Unlimited" talk minutes, or "Unlimited" (all-you-can-eat) food, or "Unlimited" water from th
        • by myth24601 (893486)

          AT&T isn't really advertising falsely, the data is unlimited. The speeds are limited.

          They should be ordered to clarify their advertising and say "3G speed up to 2GB" or similar.

          I bought a 6' fence one time that was 33% off. Come to find out, the 33% was off the hight, not the price so I ended up paying full price for a 4' fence.

      • Re:Duh? (Score:5, Insightful)

        by dgatwood (11270) on Wednesday March 14, 2012 @01:23PM (#39354701) Journal

        All these "unlimited" hosting plans have been scams from day-1 and we're glad someone is finally getting held to task for the dumbing down of the market.

        I have an unlimited hosting plan from DreamHost, and it has always worked quite well for me (currently in my second or third year, I forget). It works because they pay attention to what you're doing and assign you to a server based on how you use the service, e.g. poor-performing WordPress instances live in a festering cesspool all to themselves so that their search doesn't cause half-minute delays on other sites, static-only or nearly static-only sites are on servers with other static-only sites, high-bandwidth sites get sandboxed away from low-bandwidth sites, they limit the number of sites per Apache instance, etc. To be fair, if a site uses excessive CPU, they may ask them to move to a virtual private server, so I suppose it's not quite unlimited, but at least where bandwidth and storage are concerned, it is, and that's what most people mean when they call a hosting provider "unlimited".

        As always, YMMV.

        • They normally are fine for static sites as the "unlimited" services are normally limited by the following:

          • CPU usage
          • Memory usage
          • i-node usage

          The first two rule out dynamic sites that receive any reasonable amount of traffic. The last one is their way of controlling how much disk space you can use. Basically you have unlimited disk space, but you can only have a certain number of files before you run out of i-nodes so you can't for instance upload a million images to your unlimited web space.

          Of course there a

      • by JWSmythe (446288)

        Right. There's always a limit.

        I worked for a place that provided unlimited service. Unlimited space, unlimited bandwidth. We had some specific restrictions to what could be served. They had to use our payment system, and provide content related to that system. The majority of the users did this perfectly. In exchange for complying to our restrictions, they had "free unlimited" hosting. We never took money from the client. We took an agreed upon percentage of sales via

    • Re:Duh? (Score:5, Interesting)

      by ClintJCL (264898) <clintjcl+slashdotNO@SPAMgmail.com> on Wednesday March 14, 2012 @12:39PM (#39354063) Homepage Journal
      It's not actually always legal. For example, if you take government tax breaks for providing a publi service, you don't get to pick and choose which public, even if they are suing you.

      Dunno the specifics here, but cell phones are a great way for companies to get a 2nd chance at changing the laws that were already settled for landlines, and that's part of what we're seeing here.

      My landline company cannot legally deny me service, EVEN IF i'm suing them. But part of that is the psuedomonopoly of landlines, which doesn't apply to cell phones. But probably should. Especially if they take one penny from the government, even in the form of tax breaks.

      • Re:Duh? (Score:5, Informative)

        by Anonymous Coward on Wednesday March 14, 2012 @12:54PM (#39354277)

        Your landline company couldn't drop you for no reason, and they couldn't drop you solely because you had sued them, but that doesn't mean they can't drop you for any reason. The guy who sued has admitted he's used his iPhone for tethering, in direct violation of his ToS, which gives AT&T every right to drop his account. The only reason they haven't already is they were clearly hoping to avoid this publicity. It's hard to come up with a direct analogy to a landline since there aren't many limitations on landlines, but if you were using something like a blue box on your landline to get free long distance, then your phone company would disconnect you in a heartbeat, public service or not.

        • Re:Duh? (Score:5, Insightful)

          by wierd_w (1375923) on Wednesday March 14, 2012 @02:27PM (#39355691)

          Tethering is equivalent to the "3rd party handset or device" restriction that was considered so onerous back in the 60s and 70s.

          Basically the phone company said "to ensure quality service, we need to prohibit unlicensed devices from being connected to the telephine network."

          It was shot down at the end of the 70s, which is why you can attach answering machines, caller ID readers, and cheap chineese phones.

          Tethering is the same principle: attaching an "unaproved" device (computer) to their network.

          This is exactly in line with the gp's argument about 2nd chances to change the law.

          The "it degrades our network!" Line didn't hold up then, it shouldn't hold up now. Last I checked, a bit originating from a computer instead of a phone was not directly deleterious to any hardware in a cellular network. You could argue that tetherers use more bandwidth, but that is an ancilliary argument. Tethering itself (what is forbidden) does not harm their cellular network in any way. Transmitting excessive data, which is not what is forbidden, is what causes QoS harm.

          • by mattack2 (1165421)

            Tethering is equivalent to the "3rd party handset or device" restriction that was considered so onerous back in the 60s and 70s.

            Then you or someone else should sue them, make that point, and win, extending the Carterphone decision http://en.wikipedia.org/wiki/Carterfone [wikipedia.org] to cover this case.

            Up until then, it's their equipment, and they can say how you use it (especially since you're legally agreeing to their decisions when you sign up for the service). I think it sucks too, but the end user agreed to those l

      • Unlike land-line service, wireless is unregulated and receives no government subsidy (caveats apply for such things as under-served communities and low-income subsidies which don't seem to apply in this case). As such, they can pick and choose customers (again caveats - excepting issues of discrimination, for example). In this case, this is a customer who they don't want to have and that seems to be legal to drop. I know I wouldn't this guy as a customer if I were AT&T.

        • by geekoid (135745)

          "receives no government subsidy"
          yes they do. Who do you think backed the loans so the can build the infrastructure? Who paid for the 911 services?
          AT&T is a phone company. They get subsidies. Good luck showing the the Cell portion of the corporation in no way got an advantage from any subsidy to any other portion of the company.

        • by s73v3r (963317)

          wireless is unregulated and receives no government subsidy

          I'm sorry, but you're completely fucking wrong.

          In this case, this is a customer who they don't want to have and that seems to be legal to drop. I know I wouldn't this guy as a customer if I were AT&T.

          And it shouldn't be, because that puts a huge fucking hurdle in a consumer's ability to get justice for you fucking them over. Consumer rights should vastly trump any "right" you think you have to profit. Especially in this case.

          • by MightyYar (622222)

            And it shouldn't be, because that puts a huge fucking hurdle in a consumer's ability to get justice for you fucking them over.

            I don't think that's true at all. There are 3 other major postpaid cell providers in the US, plus about a dozen national pre-pay. This guy won an $8000 judgement, which would pay for about 8 years of unlimited service on Sprint. I fail to see any "huge hurdle".

      • by Dahamma (304068)

        I think their primary argument will be that he was tethering (and even admitted it in court). Since tethering was clearly not allowed by the ToS and AT&T has an added service allowing tethering if he wanted to do it, they really do have a pretty good case not only for dropping him, but winning their appeal. If he is going to hold AT&T to their side of the contract, he has to hold up his side as well...

        Someone who hasn't actually broken their ToS and yet has still been throttled needs to sue AT

      • by forkfail (228161)

        They get the rights to spectrum, which is supposed to be publicly owned (though, that too may have been permanently sold off to the corporations).

    • Re: (Score:3, Insightful)

      by whatkey (2514316)
      Seriously? I hope you don't own a company that solely generates revenue from long and short-term contracts. Your customer demands you live up to the terms of your own contract, you lose in a court case, and then you (potentially) illegally breach the contract again? Nice. I hope everyone threatens AT&T. I work in the telecom industry, and "most people" only know the tip of the iceberg about AT&T...
      • I don't use AT&T, or I'd be trying to get in on the fun. I did post the article to G+ hoping that some of my friends can do the honors.

    • by slapout (93640)

      Can you say "two year contract"?
      It works both ways.

      • Somebody hasn't read the terms of their service. AT&T claims the right to terminate for any reason at any time.
        • by forkfail (228161)

          But if the customer is unhappy? Nope - they're bound to the contract.

          Bastards.

          • If they make you that mad why do you continue to do it? Get a pay as you go phone. No one forced you to sign the contract. You did it because you like the subsidized phones or something.

            • by MightyYar (622222)

              I just did this - I feel like a sucker for paying T-Mobile 40 extra dollars every month for so long.

          • by Artraze (600366)

            Well, yeah. That phone wasn't actually free you know.

            The major thrust of the contract is that they give you a phone in exchange for guaranteed business. Since you already have the phone, their part of that bargain is fulfilled and they can cancel the contract without penalty (as they are the ones that 'lose' in such a case). After two years, you've fulfilled your side and can cancel the contract without penalty too.

        • by BitZtream (692029)

          They can say anything they want in the contract, that doesn't mean it overrides the law even if you signed the contract. If the law (a judge ruling for instance) says they can't drop him, then they can't regardless of the paper they signed says.

          Its important to note though, that no one said AT&T can't drop him. It seems they can so far until someone actually shows otherwise.

          I think the point here however is that if everyone does this and AT&T 'drops them' thats a half a billion dollars or so in

        • by s73v3r (963317)

          Unless the consumer has the same rights, and can do so without penalty, then that clause should not be allowed.

    • by na1led (1030470)
      And then you'd get sued a second time, for discrimination!
    • Re: (Score:2, Informative)

      by Anonymous Coward

      Well, apparently, the guy admitted to tethering, which the contract also forbids. You can argue whether it should be verbotten, or even allowed in the contract, but it is in the contract.

    • Re:Duh? (Score:5, Insightful)

      by magarity (164372) on Wednesday March 14, 2012 @12:47PM (#39354179)

      and I'm glad the guy won

      I for one wonder why he won; he admits to sucking down the bandwidth due to tethering which is a clear violation of the terms of service he signed up for as part of getting unlimited bandwidth. If he'd used it all watching videos and whatever else you can do with just the phone itself, I'd be completely supportive. But are all the people complaining about ATT throttling them using so much due to tethering? If so, I've suddenly lost all interest and sympathy. Here I thought all the complaints were from people using their phones' internal capabilities and getting cut off.

      • by cpu6502 (1960974)

        It's small claims court.

        Probably none of ATT's lawyers showed-up, so the judge never learned the customer was using tethering, and so he issued a judgement based on lack of knowledge. In a real court this guy would probably be torn to shreds by ATT's lawyers.

        • by queequeg1 (180099)

          I don't know about this particular court, but in many small claims courts, parties are not allowed to be represented by counsel (even if the attorneys are in-house counsel).

        • by s73v3r (963317)

          Care to back that statement up? Or are you just talking out of your ass because you're upset that a consumer actually won something, and was able to stand up to the big guy?

      • by s73v3r (963317)

        Except you're placing an arbitrary and retarded limit on the data. There's no difference from using the data on the phone, to using it as tethering.

      • by Tom (822)

        I for one wonder why he won

        Because the matters are unrelated.

        AT&T promised something they didn't deliver. That's the case he brought and won. His tethering or not does not change the fact of AT&T failing to provide the advertised service.

    • by mcavic (2007672)
      I have no more sympathy for this guy since he admitted to tethering. Running Remote Desktop from your phone for 10 hours a day is something that might be considered fair use for an unlimited plan. Plugging your phone into your PC and spending the day on Netflix or Second Life isn't.

      That being said, I think there are some other people who would deserve the win. All AT&T has to do is stop calling their plan unlimited, and then they can cap all they want. Just have two plans: Lite, and Standard. Ad
    • by thsths (31372)

      > I have no love for AT&T and I'm glad the guy won, but if one of my customers sued me, I'd drop them in a heartbeat!

      Yes, but I would assume that the 24months minimum contract period plus termination notice apply for both sides. In which case you hanged yourself with your own contract. 5/5 for style, 1/5 for thinking it through.

    • by Lumpy (12016)

      "but if one of my customers sued me, I'd drop them in a heartbeat!"

      And he will enjoy suing you again. It's a vicious cycle when you lie about service and whine about getting used because you lied about what you were selling.

      Moral of the story? Dont be a scumbag company and you will not open yourself up for the vicious lawsuit cycle.

  • by mattdm (1931) on Wednesday March 14, 2012 @12:33PM (#39353971) Homepage

    I mean, I'll try anything to improve AT&T signal reception, but I'm skeptical. I tried sitting, standing, and even lying down, and it doesn't really seem to change anything.

  • by stevegee58 (1179505) on Wednesday March 14, 2012 @12:37PM (#39354041) Journal
    He violated his terms of use with AT&T by accessing the internet tethered. That violation alone warrants termination.
    • by cpu6502 (1960974)

      Does ATT sell any devices that are specifically for use with PCs? Like the link below? If so then they can't use that "no tethering" clause to escape false advertising charges ("unlimited") that future customers might bring:

      http://www.virginmobileusa.com/mobile-broadband/broadband2go.html [virginmobileusa.com]

  • Omitted in Summary (Score:5, Informative)

    by JeanCroix (99825) on Wednesday March 14, 2012 @12:38PM (#39354047) Journal
    In TFA, it is stated that AT&T's threat to discontinue his service is based on his admission of tethering, which is against the TOS he agreed to. Not that their tactics here aren't shady, but they do have a contractual basis (excuse) for the threat.
    • by DRJlaw (946416) on Wednesday March 14, 2012 @02:36PM (#39355813)

      In TFA, it is stated that AT&T's threat to discontinue his service is based on his admission of tethering, which is against the TOS he agreed to. Not that their tactics here aren't shady, but they do have a contractual basis (excuse) for the threat.

      Two problems: 1. Terminating the contract is not going to nullify the money he was awarded for AT&T's violation of the original contract. He didn't get a judgment that forced AT&T to provide him with unlimited data, so terminating the contract only serves to release him from the obligation to pay for a capped service that he quite clearly dislikes. AT&T is presuming that he wants to remain an AT&T customer. Since TFA says that he doesn't care.. 2. Thousands of others have tethered their phones, and AT&T's response has been not to terminate their service, but to require them to buy the approved tethering package. While the language of the contract may permit termination for violation of the TOS, AT&T has likely waived termination as a remedy for this sort of violation through its own announcements and actions. If AT&T terminates the contract and attempts to impose a termination fee, expect a second small claims case where there's a reasonable likelihood that AT&T loses. "Settle with us or we'll kick you out of our lousy service and appeal (without being able to introduce new evidence or arugment)" isn't much of a threat. The internet is rife with people looking for "material changes" in their contract in order to escape without paying an ETF, and he's only risking an $850 'paper' loss of his original award.

  • by errxn (108621)

    Spaccarelli has admitted that he has used his iPhone to provide Internet access for other devices, a practice known as tethering, which violates AT&T's contract terms. AT&T says that means it has the right to turn off his service.

    Game, set, match. I have NO love for AT&T, but if this guy admits to violating their ToS, he doesn't have much of a leg to stand on.

    • Assuming, of course, that a ToS provision against tethering is enforceable in the first place, which sounds dubious to me, at least from technical perspective (bits are bits).

      • Why wouldn't it be enforceable? What statute or case law would invalidate it?

        • Well, saying your can't tether your phone is a bit like saying you have unlimited text messaging unless you're sending messages to your mom, then you've violated your TOS. Never mind that the data being transferred is exactly the same type whether your streaming through your phone or through your laptop attached through your phone.
  • What would victory look like? Forcing them to acknowledge that they're genuinely incapable of delivering what they promise is really about as much as can be achieved...

  • "We don't care what some judge said. You either do it our way, via arbitration, or we ban you forever."

    Damn corporations. Sound similar to how Paypal operated in the previous decade, until a class action lawsuit was brought against them by the States. Well at least corporations don't have power to throw me in jail forever, or draft me to serve in some foreign war (like government can).

  • For those that don't RTA: "Spaccarelli's victory in small-claims court is similar to that of Heather Peters, a California woman who won $9,867 from Honda last month because her Civic Hybrid did not live up to the promised gas mileage. She, too, is helping others bring similar cases."

    I'm surprised she won. Perhaps it was because Honda *reprogrammed* the car after purchase, and that immediately made the MPG drop by ~10. I own a Honda Insight and am happy with the results (90mpg at 50 mph; 70mpg at 60 mph)

  • Just as he is free to not renew, AT&T is also free to not renew.

    I have no problem with a business telling a customer "you cost us too much, we don't want you as a customer anymore." At the end of his current term, drop him like a hot potato.

    Let Verizon or Sprint deal with him....
    • by spire3661 (1038968) on Wednesday March 14, 2012 @01:06PM (#39354451) Journal
      The problem is that wireless spectrum is owned BY THE PEOPLE, we lease it to these companies. It is this fact alone that moves telecomms from ordinary companies to necessary infrastructure, subject to special rules and regulations. We should be HAMMERING wireless with regulation right now. I have a problem with a corporation, denying access to PUBLICLY OWNED airwaves because he is taking them to task legally.
    • Just as he is free to sue do to breach of contract.
  • Corporate Bullies (Score:5, Informative)

    by MacGyver2210 (1053110) on Wednesday March 14, 2012 @12:56PM (#39354301)

    This is a cut-and-dry case of corporations pushing around the consumers. Given it is over internet service, this would make a great case of 'cyber-bullying' (as much as I hate that whole concept).

    If American customers have any sense, they will file these suits in droves and this guy will never talk to AT&T again.

  • by SwashbucklingCowboy (727629) on Wednesday March 14, 2012 @12:58PM (#39354345)

    Since they guy admits he violated the Terms of Service by tethering, is it really a surprise?

  • by JustAnotherIdiot (1980292) on Wednesday March 14, 2012 @01:24PM (#39354725)
    And it's nuts.
    A company should be on their knees begging customers for business. Customers are the lifeblood for a company.
    Ahh, but I suppose I'm just too old fashioned for this world...
  • by U8MyData (1281010) on Wednesday March 14, 2012 @01:55PM (#39355203)
    Anyone read the letter of resignation of Greg Smith over at Goldman Sachs? Me thinks AT&T is NO different.

A holding company is a thing where you hand an accomplice the goods while the policeman searches you.

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