Judge awards iPhone user $850 in throttling case | Hacker News Reader

Judge awards iPhone user $850 in throttling case

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72 pointspwg43 comments

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.

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.

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.

This is called "modem math".

Ah - I was wondering how you use 11.5GB a month on an iphone. He's probably tethering with it.

Since you speak of bandwidth by monthly use instead of transfer rate per second, i take it that you understand as much of the subject as phone operators.

If you sell by anything other than slicing your pipe width, you're selling more than you have. Period.

I think you'll be hard pressed to find any ISP that doesn't oversell (at least to consumers - business connections are a different issue). In fact, it'd be extremely inefficient to have all that reserved bandwidth when only an extremely small slice is being used at any time, not to mention that the prices would probably go up ten fold or more.

Overselling is not a problem if the ISP manages it well (keeping a decent window to account for expect and some unexpected growth) and don't punish their users if they use what was promised.

> "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?

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

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?)

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.

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.

I don't think they will consider it if you can't provide proof of compensation close to what's in the law for the claim he's making

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?

But isn't a settlement by discretion of the court? Because it's usually in the interest of the people not to waste taxpayer's money on a lawsuit? But what then if a settlement isn't in the interest of the people?

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.

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?

I think switching providers counts as doing something.

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.

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.

>If AT&T sends a lawyer to every one of these things

Large companies have lawyers on permanent retainer - they're getting paid regardless if they're at a case or not.

They don't have so many lawyers on payroll they can respond to a large increase in small claims court appearances though. They'll have to hire more, or send someone less qualified, or send nobody - all cases in which the consumer has "won".

The opportunity cost of spending the lawyer's time on small claims vs something else is not to be underestimated.

This is the same fallacy that some people use about planes: "Traveling by plane doesn't result in more fossil fuels burnt because the plane would have flown anyway".

The way these things work is that every once in a while companies evaluate whether there were enough lawyers, and based on this they hire or lay off lawyers.

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.

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.

> A lawyer ... can't argue in front of the judge.

AT&T could simply make the lawyer a corporate officer with just enough authority to handle small-claims court.

It is my understanding that this is only true in certain states; that in some states corporate lawyers can absolutely argue the proceedings.

Perhaps, but if one includes the risk of the lawsuit failing combined with the time to assemble the case, it's a loss for a lot of people. Since you're selecting out people based on income or how much they value their time, you're also selecting out most of the people who would go through with this in the first place.

I'm asserting that there won't be that many people willing and able to bring these cases to AT&T, particularly when the payout is so low, and that, in the end, makes the whole deal peanuts for AT&T.

This.

I worked with a guy that complained to me one day about taking his car to a full-service hand car wash. They did a crappy job. I asked if complained and he said it was no use, he just wasn't going to go there again...this pisses me off to no END! Fine, don't go back, but you know who gets screwed over? The next guy in line!! Go back for him, if not yourself.

It's the same reason we prosecute criminals. The dollar costs of prosecuting a petty thief is several orders of magnitude more than the stolen chocolate bar. But it has to be done.

The idea tha AT&T will learn because people are "voting with their dollar" is a joke.

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.

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...

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.

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

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

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

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

But in a class action you'd probably only get $8.

It is not about money!

Oh no, it's about money, it's just about punishing the company you're suing as opposed to making you whole.

When you see that a class action settlement led to each person getting a few dollars a piece, don't look at that. Look at the amount of cash that they had to pay out to give each claimant that cash (as well as the lawyers).

The point of modern class action suits is to form a large enough stick to beat misbehaving corporations about the head with - they never have and never will be about getting suitable restitution.

If AT&T throttles your unlimited plan and then encourages you to switch to a more expensive metered plan to get back the same level of service you used to have, money does seem to be at stake. And also punishing The Man, of course.

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.

Thanks for the info. I guess I missed that.

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