Legal action taken against Virgin Media throttling practices

[suggsy]

Originally Posted by homealone

you have the units wrong - a 20Mb/s line should be around 2.33 MB/s

- also newsgroups at $30 are expensive - have you tried the Astraweb offer - $11 including SSL

http://www.news.astraweb.com/special...FUU_3god4USFDQ

- if it is still available ...


<edit> sorry, topic

- wouldn't a case pursued in the Scottish Court system only apply in Scotland if found in favour of the plaintiff ??

you have the units wrong - a 20Mb/s line should be around 2.33 MB/s
(i thought that was what i said, but deff what i meant, sorry,) and thanks for astraweb link i will look into it, but i use giganews with newsleecher and thought it was the best one, but maybe not

Sorry Mike for thread hacking, i slapped the back of my hand

[Mike_A]

Originally Posted by suggsy

'ordinary people' ?? i'm far from ordinary lol,

I live 11 miles from my ubr, also i dont know anyone who downloads faster than 2.33mb/s, (obvious exception being 50mg connection), i have a special price as i have been a long standing customer etc etc, i have 20mg b/b, tv without sports and movies, and landline phone for £57 p/m

ps, by 2.33mb/s that is actually top wack full speed for 20mg connection, or so i'm led to believe lol

lol - I see now. Looks like you are quoting wrong (loosely "20Mb divided by 8 bits + 1 "parity" bit equates to what you state, which would be around 2.33MB). If not, then it drives a coach and horses through the distance from UBR argument for cable.

I too had a special price of about the same - as a long standing customer. Reduced from over £80.

[BenMcr]

Originally Posted by Mike_A

I too had a special price of about the same - as a long standing customer. Reduced from over £80.

But wouldn't that be a change to your original contract, which you say they cannot do?

[suggsy]

Originally Posted by Mike_A

lol - I see now. Looks like you are quoting wrong (loosely "20Mb divided by 8 bits + 1 "parity" bit equates to what you state, which would be around 2.33MB). If not, then it drives a coach and horses through the distance from UBR argument for cable.

I too had a special price of about the same - as a long standing customer. Reduced from over £80.

Cool, but i dont understand why im tm'd at this hour of midnight when ive only downloaded about 2 gig today, sorry again thats for another thread, but when at full speed i download a typical 700mb file in around 5 or 6 mins and the leecher shows 2.33 speed

[nfs6600]

Originally Posted by BenMcr

But wouldn't that be a change to your original contract, which you say they cannot do?

Mike, Ben has a great point here. When did you get this special price??

[Mike_A]

Originally Posted by BenMcr

Those originally agreed terms include the right for the company to manage it's network as it sees fit

Again I point you the provision that has been in Telewest terms and conditions since 2001

This means that this right has been there since Telewest started providing broadband services, so will have been in your original contract!

EDIT: as for notification, the original Telewest terms has that covered as well:

So again, the original Telewest terms allow notification of measures to be put up on website - such as www.virginmedia.com/traffic. This website was avaliable BEFORE the Traffic Managment was officially introduced in May 2007

Yes, have that covered. See my previous post about Paddington Bear.

Ben and other VM people, I do appreciate the considerable effort you have spent attempting to explain VM's stance. It appears to me you have set it out with endeavour and accuracy from the point of view VM staff are accustomed, trained and experienced in. That, I have to say, is commendable. Unfortunately, it does not equate with law (for Scottish law a good read of Walker on contract will quickly assist; English law is little different on the subject at hand). Between you, you have neatly set out the technical practices and obstacles and how VM interpret contract. My thanks. If only the great many of your colleagues were so enthusiastic...

Ben: again thanks for your feedback as regards change of contract. This is called variance. It does not make a new contract but comprises a mutually agreed varying after both sides have entered into a process leading to variance. Apologies if this sounds technical but law is far more abstract than the logic of technology. I prefer the simple right/wrong, on/off boolean logic, but law operates through evolution. I think that there's a saying that goes, "If ever you want to maintain respect for sausages and law, it's unwise to watch them in the making".

nfs: ages ago, maybe 2006/7 when VM were doing their takeover thingy.

[nfs6600]

You have failed to comment back on both Ben and myself questions...... no wait, two of mine now.

[danielf]

Ok, I haven't read the entire thread, but surely the original contract will state that VM/NTL/whatever can change the terms of the contract (and when they do this you can get out if you're locked in)? It seems to me that this would be normal (and even understood) practice in any contract that is not negotiated for a specified amount of time.

[BenMcr]

Originally Posted by Mike_A

Ben and other VM people, I do appreciate the considerable effort you have spent attempting to explain VM's stance. It appears to me you have set it out with endeavour and accuracy from the point of view VM staff are accustomed, trained and experienced in. That, I have to say, is commendable. Unfortunately, it does not equate with law (for Scottish law a good read of Walker on contract will quickly assist; English law is little different on the subject at hand). Between you, you have neatly set out the technical practices and obstacles and how VM interpret contract. My thanks. If only the great many of your colleagues were so enthusiastic...

Excuse me - at what point have I explained Virgin's stance? Only Virgin can do that.

What I have posted in my own view on the terms and conditions laid out on the website - nothing to do with Virgin training, opinion, policy or anything else. I would have arrived at the same opinion no matter who I worked for.

And surely if a company is registed in England and Wales then it is that contract law that would apply, not Scottish law?

In fact the original Telewest terms specifically state:

This Agreement shall be governed by and construed in accordance with English law

---------- Post added at 00:38 ---------- Previous post was at 00:29 ----------

Originally Posted by danielf

Ok, I haven't read the entire thread, but surely the original contract will state that VM/NTL/whatever can change the terms of the contract (and when they do this you can get out if you're locked in)? It seems to me that this would be normal (and even understood) practice in any contract that is not negotiated for a specified amount of time.

Indeed it does. Virgin have to give 30 days notice of any change to the Terms or prices etc, and the customer has at that stage a right to cancel without penalty.

This section is made quite clear - Section J

Similar sections apply in all service agreements I have seen/been party to as a customer

It was section 63 in the original Telewest terms which the OP wants to return to

63. We may amend or vary the terms of this Agreement from time to time by posting an amended version of these terms and conditions to our Website (and any such amendment or variation shall be effective on the fifth day following such posting). However you will have the right to terminate this Agreement if the changes are significant as described in paragraph 73.

73. If, during the Minimum Period, we either increase our Charges by more than 10% (or, if greater, the then prevailing rate of inflation) or make significant changes to the Services, you may terminate this Agreement by giving us at least 30 days notice in writing. If you do not give us notice of your intention to terminate within 30 days of notification to you of such changes you will be deemed to have accepted the increase in Charges and/or the changes to the Service.

[danielf]

Originally Posted by BenMcr

Indeed it does. Virgin have to give 30 days notice of any change to the Terms or prices etc, and the customer has at that stage a right to cancel without penalty.

This section is made quite clear - Section J

Similar sections apply in all service agreements I have seen/been party to as a customer

That's what I thought. And I would think this would blow this whole case out of the courts? On what basis does the OP want his original contract installed?

[Mike_A]

Originally Posted by BenMcr

Excuse me - at what point have I explained Virgin's stance? Only Virgin can do that.

What I have posted in my own view on the terms and conditions laid out on the website - nothing to do with Virgin training, opinion, policy or anything else. I would have arrived at the same opinion no matter who I worked for.

Not saying you are representing VM - just commended you on putting forward in debate the stance generally taken by VM.

And surely if a company is registed in England and Wales then it is that contract law that would apply, not Scottish law?

No - you are referring to jurisdiction. Registration status is irrelevant. A good point though, for the basis of jurisdiction is the first hurdle in any case. Jurisdiction generally flows from the place a contract is made, especially if made in a person's home. It can be a thorny issue and result in leading substantial submissions in law each supported by legal authority from other cases. In this case, jurisdiction is a clear cut issue that I have well prepared for. To put it another way, if BT sold you a service in England but had in their terms that jurisdiction and law was that of Inner Mongolia, the English courts would be slow to refer it there without proof that the selling party went to great lengths to explain the precise nature of jurisdiction. In my experience most salespeople have little idea of the true meaning of the term, let alone explain it.

---------- Post added at 00:55 ---------- Previous post was at 00:47 ----------

Originally Posted by danielf

That's what I thought. And I would think this would blow this whole case out of the courts? On what basis does the OP want his original contract installed?

To this, and Ben's previous post on the subject, there was no variance. VM did not go through the steps to vary, nor take a fair and mutually amicable approach. They would also have required to offer arrangements and alternatives, none of which followed. What Virgin Media instead practised towards many is a grossly unfair, unreasonable and unwelcome change in a crucial part of the service without reasonable explanation, if any. That approach has long been considered unlawful.

Once again, a service provider cannot offer a quantum of service and then restrict it simply because they have oversold in comparison to their means to operate that service. There's an element of restitution involved. Oh, and they must be reasonable.

[BenMcr]

VM did not go through the steps to vary, nor take a fair and mutually amicable approach.

The right to manage the service was in your original contract - there has been no variation in your terms!

They would also have required to offer arrangements and alternatives, none of which followed

Your alternative was to find another provider, if you did not like the service changes Virgin were proposing

I find it interesting that you seemed to have not minded or taken legal action about the previous variences in your contract when it applied either to price changes (which again you would have been given no alternative) or speed increases in your favour.

What Virgin Media instead practised towards many is a grossly unfair, unreasonable and unwelcome change in a crucial part of the service without reasonable explanation

They posted a full explanation as to why, when and how they were doing it on the website before it was introduced - a copy of which can be found here http://web.archive.org/web/200705160...t/traffic.html

Posting this would have complied with the original Telewest terms

[beeman]

Originally Posted by BenMcr

And surely if a company is registed in England and Wales then it is that contract law that would apply, not Scottish law?

Funny that i thought VM are incorperated (regerestered) in the United States, that dosnt mean US law's apply

In fact the original Telewest terms specifically state:

This Agreement shall be governed by and construed in accordance with English law

These lines you see in contracts are as legally dubious as terms allowing change of contract. Infact English law (dont know about scottosh law as would apply in this case) specifically overites these terms.

ie if sitting in my living room in england and i buy something in america, the supplyer breaks english law (but NOT american) i can still take them to court and win in the english court. The trouble would bee applying the judgement (actually collecting my money).

[MovedGoalPosts]

The real debate here, at least in England and Wales since Scottish Law can be slightly different, is whether or not, since Virgin Media are selling their services to consumers, the terms of their contract are fair.

Yes, Virgin Media aka Telewest / NTL have had terms in their contract purporting to allow revisions. But does that term muster scrutiny to the courts?

On the same principle, the concept of STM, capping, throttling or indeed restricting certain types of communications on a service purported to be unlimited, might also be considered by the courts to be an unfair term of contract.

As far as I know these are not matters yet tested in court. People can argue what they like about the wording of contracts and their merits. However legislation, particularly contract law can require the courts to look more closely. One would hope that the legal people at the likes of Virgin Media have thoroughly vetted their contracts, and other practices, against consumer and other case law.

I applaud the OP for his efforts towards bringing some legal clarity via the courts to the UK broadband industry as a whole. Whatever the outcome, the concerns over legality of caps, throttling and similar resurface periodically and it's time both consumer and provider had a definitive view so this can finally be put to bed.

[danielf]

Originally Posted by Mike_A

To this, and Ben's previous post on the subject, there was no variance. VM did not go through the steps to vary, nor take a fair and mutually amicable approach. They would also have required to offer arrangements and alternatives, none of which followed. What Virgin Media instead practised towards many is a grossly unfair, unreasonable and unwelcome change in a crucial part of the service without reasonable explanation, if any. That approach has long been considered unlawful.

Once again, a service provider cannot offer a quantum of service and then restrict it simply because they have oversold in comparison to their means to operate that service. There's an element of restitution involved. Oh, and they must be reasonable.

I can sort of see what you're hinting at, but I can't see your case. For one, there's the time scale. You're looking to reinstate a contract from years back. Times have changed, and I don't see how a judge could determine what is reasonable now. The other thing is the terms you agreed to. You've consented to them being able to amend the terms of service, which they have. According to these terms you have the right to terminate the contract without penalty, and you haven't.

It seems to me your case is doomed to fail, and to be honest, I hope it does, because if you succeed it may mean that any customer with a gripe can hold the rest to ransom over some ancient contract they never signed.