

Judge awards iPhone user $850 in throttling case - pwg
http://news.yahoo.com/judge-awards-iphone-user-850-throttling-case-195042925.html

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nextparadigms
The main reason why they don't allow you to tether your phone is not because
they just want you to pay twice, although I'm sure that has some play into it
as well, but most people won't pay for it anyway, but because they don't want
people to actually use the data amount they were given.

Right now part of their business model is that most people do _not_ use the
whole 2 or 3 GB of data that they are given. Allowing them to tether, even
though it would bring them more money if the user goes over the limit, means a
lot of people will start using all the data they received.

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MichaelApproved
That's a tactic many businesses use. Oversubscribe services and profit from
the limited use of the product. Punish the few who actually try to make full
use of the service.

See any cheap, shared hosting service. They'll promise unlimited so long as
you don't try to take them up on that offer.

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cdr
Certainly not a new thing. Circa 1994 my dial-up ISP (with "unlimited"
internet, the first one in the area) was oversubscribed like every dial-up
ISP, they had an order of magnitude less connections available than paying
customers. When I actually set the connection to stay up 24/7, they shut the
account down within a week.

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trafficlight
This is called "modem math".

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Sander_Marechal
> "AT&T forbids them from consolidating their claims into a class action or
> taking them to a jury trial."

How is that even legal in the US? Is customer protection really that bad that
companies can take away these rights?

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yuhong
I think it was a Supreme Court case related to arbitation.

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gergles
To be fair, it was the Supreme Court ruling on the (big-business backed)
Federal Arbitration Act[1]. The Supreme Court didn't just decide out of thin
air "hey, we should really fuck everyone over and make it so that all your
grievances have to go to a secret court where the judge is paid by your
opponent".

[1] <http://en.wikipedia.org/wiki/Federal_Arbitration_Act>

(Though I would be interested to hear how such an act isn't unconstitutional
as it seems to me to remove the right of a person to petition the government
for a redress of grievances - isn't that a guaranteed right?)

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Karunamon
I've always wondered what prevents a court from saying "Your agreement not to
sue is between you and the person, we're not a part of it, i.e. take your
agreement and shove it".

If I sign a piece of paper that says I won't sue you, I don't see anything
stopping a court from ignoring that outright.

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yummyfajitas
_If I sign a piece of paper that says I won't sue you, I don't see anything
stopping a court from ignoring that outright._

If courts ignored such pieces of paper, then settling lawsuits out of court
would be impossible.

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marshray
If someone did, say, agree to an out of court settlement for something, then
one party didn't perform as agreed I imagine it could easily end up in court
again.

Here wasn't it the same contract that mandated the arbitration that was not
fulfilled by AT&T?

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alanfalcon
I was really disappointed when I got a warning in January when I was only at
around 2GB for the month on my AT&T iPhone "unlimited" plan. On the one hand,
I like unlimited because in theory it means I never have to think about my
data usage, but the warning and apparent immediately subsequent throttling I
experienced for the rest of the month (~7 days) was painful enough for me to
consider switching my $30 unlimited to $30 3GB (and freeing me up to change
providers when the next upgrade cycle rolls around–previously I wasn't willing
to give up my grandfathered unlimited plan, but I never expected "unlimited"
to mean less data for the same money [and the throttling is so severe that
there would have been no way for me to reasonably reach 3GB data usage]).

I'm not going to go to small claims court over this or anything, but I had
goodwill towards AT&T even when the rest of the country was bashing them
(coverage has been reasonably good in areas I lived while on AT&T) and that's
gone now.

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bgentry
_I'm not going to go to small claims court over this or anything_

Are you surprised that AT&T thinks they can treat their customers like this
when almost none of them will do anything about it?

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JumpCrisscross
In all fairness even the guy who did something got $850 for his months of
work. Not exactly bloodying up anyone's nose with that kind of a settlement.

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Aloisius
I'm not sure about that. If AT&T sends a lawyer to every one of these things,
it will quickly become very expensive. If they don't, they risk it becoming
very easy to get awarded this money. Plus with precedent set, it will be
considerably easier for someone else to do this.

If the settlement dollar values hold up and this becomes easy enough, it could
become far more costly to AT&T than any class action suit would have been.

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Avenger42
It was small claims court, AT&T can't actually send a lawyer there.

A lawyer could potentially do all the prep work (and bill for it) but they
can't argue in front of the judge.

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marshray
So who represents AT&T at the hearing?

Anyone the company designates as long as they're _not_ a lawyer?

I think AT&T should be able to send a lawyer in such a case _as long as he is
wearing a clown suit including the red rubber nose_.

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bragen
A bit of background on why (IMO) it's good to see these small claims cases
succeed for non-trivial amounts:

AT&T is essentially class action proof post- _AT &T v. Concepcion_. AT&T had
always put mandatory arbitration and class action waiver provisions in its
contracts but states (most notably CA) usually ignored them and allowed class
actions to proceed. In _Concepcion_ , the Supreme Court said that the Federal
Arbitration Act (an act that basically says promoting arbitration is so
desirable any contract that calls for arbitration must be honored) preempts
state law that would ignore those provisions.

In other words, the formula for becoming class action proof is now 1) insert
mandatory arbitration provision; 2) insert class action waiver; 3) dare
consumers to sue you one at a time.

Virtually the only way I see to overcome _Concepcion_ right now is mass,
coordinated (but individual), small claims suits or arbitrations. If AT&T had
to face several million suits where it was actually relatively easy to win
$850, they'd be begging for the old class action system.

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extension
To what extent is a third party allowed to assist a claimant in small claims
court? If someone were to start a business that made it as easy as possible
for people to take AT&T to court...

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MichaelApproved
I would love for this ruling to stand but ultimately AT&T can't let it or
there will be a flood of people hitting them in small claims court. They will
appeal.

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raganesh
Shouldn't the title be about an "AT&T Subscriber"?

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Someone
That title is somewhat framing the issue; a better one would be "Judge awards
AT&T customer $850 in throttling case"

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tonster
Glad to hear that AT&T is getting some heat regarding this issue.

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yabai
Yes. I was hoping for a class action lawsuit. Perhaps this is on the horizon?

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dangrossman
The AT&T subscriber agreement requires you settle claims through binding
arbitration. You give up the right to enter a class action suit by
subscribing. The Supreme Court has upheld these clauses in contracts as valid.
This was in the article, above the fold.

It's unlikely there will be a class action suit.

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yabai
Thanks for the info. I guess I missed that.

