Legal action taken against Virgin Media throttling practices

[BenMcr]

Ok so not what I thought, but same effect. smaller pipe that works the same as the bigger one?

[Mike_A]

Originally Posted by BenMcr

Hmm. From the way I understood it - no.

Virgin have the ability to send whatever config profile they like to your modem - as the speed uplifts show.

So I always assumed that this is all they did - you hit X threshold they send Y config profile which sets your modem to Z speed. After the time period is up they then send the config profile that matches your original tier.

Helpful - thanks. Gives me something of a dilemma though.

Thinking out loud: if this is purely what VM do it means that for node-wide sudden drop then all or most modems are being issued with profile-based speed reductions. Ergo, this infers not just traffic management at client level but that VM actively engage in reducing service not on a personal use basis but for their own reasons. That would imply fraud more than anything else against normal users. Also, it implies direct interference on a one-to-one level with a client's computer system in so far it has access to free use of Internet within a person's home, and that across all clients. Accordingly, there is a wide scale abuse of computer misuse legislation.

Balancing those thoughts, this means that if VM wanted to they could address their overall problem and the dissatisfaction displayed on this forum by taking active measures against high bandwidth users and leaving others free to enjoy their service.

Need to think and research more. It doesn't quite explain the test data I have but could prove to be an additional problem: especially if sales staff know of this and continue selling unlimited service. Crucially, though, it does mean that VM can resolve my action against them immediately and without the inevitable corporate effects of going through court procedure.

Update:
Just seen Broadbandings post following Ben's one I responded to. It makes much more sense and sits within the ambit of the evidence I have. Same legal issues for VM then.

[BenMcr]

And if you read Broadbandings reply you will see I was wrong - it is QoS profiles at Virgins end, not changes to customer's modems

[Mike_A]

Originally Posted by Broadbandings

You can't see any changes at the modem. It's policed at the CMTS through rate limiting, nothing is changed at the modem at all just the QoS profile at the CMTS. Modems will only take new config files when they are registering, hence the stuff about rebooting to get an uplift / new service tier.

Nothing is sent to the modem it's all network side.

There is nothing 'slowed down' - the traffic follows a simple leaky bucket, traffic in excess of the profiled rate will be dropped in the same manner as normal. It's nothing more or less than a switch from 20/0.768 say to 5/0.192 so no more interception than the standard rate limiting which is at layers 1 to 3, nothing transport to application layer.

Can you expand upon this please, more for others with little technical knowledge than me. It's a useful point that ordinary and high traffic users alike should come to terms with.

[Ignitionnet]

Originally Posted by BenMcr

Ok so not what I thought, but same effect. smaller pipe that works the same as the bigger one?

Correct. Where modem is either trying to receive or transmit above the penalty rate packets are simply dropped.

[caph]

Originally Posted by Mike_A

Hope you had a good supply of tea whilst you were reading!

I mean scrutiny of the original contract I had with Telewest and any variance of it. I don't think I can cut and paste bits of the contract because it would breach VM copyright and would delve beyond the border of not discussing the actual detail of the court case as it will be submitted (I go close to it above, but only to point out significant law for this debate, not as I shall represent in court). However, I think it was Ben who pointed to relevant parts of contract earlier in the thread.

Out of tea, had to make do with wine. Ah well.

You may well have double sixed yourself if your case relies on proving VM/Telewest breached their own contract (as has already been pointed out by many).

I was assuming you were approaching this from the point of view that the T&Cs were unfair (i.e. unlawful) rather than that they were breached. It may be worth a rethink and a change in tack before you end up going down a blind alley.

If I can add my tuppence worth, my major gripe is that there are a great many of us on heavily oversubscribed UBRs who are getting around 1Mbit speeds when we pay for 10 or 20. Relief dates are continually bandied around and continually fall through. There is no way for us to apply pressure to get this situation remedied, you just hit a brick wall as per this exchange with tech support today:-

"The load on your UBR is very high at the moment and will cause you to have
minimal throughput.

We are currently awaiting details regarding the upgrade date for your UBR,
the reference for this is *********. We're sorry for the inconvenience
caused.

You can discuss compensation with our Customer Care team available on 150
from a Virgin Media line."

This goes on for months on end with seemingly no recourse for us customers.

Maybe this angle could be incorporated in to what you are doing perhaps?

I have to agree with others that the fact you can choose to go with other suppliers will work against you but I would also add this - I live right on the border of exchanges (the area code changes down the street) and my max ADSL speed is sub 1Mb, therefore this skews my freedom of choice considerably. More like a choice between a rock and a hard place at the moment.

Hope some of this info is of use.

Good luck.

[Mike_A]

Originally Posted by caph

Out of tea, had to make do with wine. Ah well.

You may well have double sixed yourself if your case relies on proving VM/Telewest breached their own contract (as has already been pointed out by many).

I was assuming you were approaching this from the point of view that the T&Cs were unfair (i.e. unlawful) rather than that they were breached. It may be worth a rethink and a change in tack before you end up going down a blind alley.

If I can add my tuppence worth, my major gripe is that there are a great many of us on heavily oversubscribed UBRs who are getting around 1Mbit speeds when we pay for 10 or 20. Relief dates are continually bandied around and continually fall through. There is no way for us to apply pressure to get this situation remedied, you just hit a brick wall as per this exchange with tech support today:-

"The load on your UBR is very high at the moment and will cause you to have
minimal throughput.

We are currently awaiting details regarding the upgrade date for your UBR,
the reference for this is *********. We're sorry for the inconvenience
caused.

You can discuss compensation with our Customer Care team available on 150
from a Virgin Media line."

This goes on for months on end with seemingly no recourse for us customers.

Maybe this angle could be incorporated in to what you are doing perhaps?

I have to agree with others that the fact you can choose to go with other suppliers will work against you but I would also add this - I live right on the border of exchanges (the area code changes down the street) and my max ADSL speed is sub 1Mb, therefore this skews my freedom of choice considerably. More like a choice between a rock and a hard place at the moment.

Hope some of this info is of use.

Good luck.

As I think I mentioned elsewhere, unfair and breached, one element being oversubscribing to the extent they can never provide agreed performance. The things you suffer are catered for.

...and thanks!

[graf_von_anonym]

Originally Posted by Mike_A

What seems to pervade VM operations is policy which appears as indoctrination.

Your techniques have the whiff of The Manchurian Candidate to them, but I was responding in jest to something I took not entirely seriously. It's hard to operate within an organisation that does things a particular way without picking up that way of doing things. In many cases Virgin's explanations for the whys and wherefores of Traffic Management are brought about because that is how the network is understood to work. Now how close how the network is understood to work and how it actually works I leave as an exercise for the reader, though I would point towards the difficulties in treating a complex system as anything other.

Originally Posted by Mike_A

But what do I want? The service I paid very high rates for. I do not want a service never higher (during times of normally expected use) than someone who is paying for the low or medium bandwidth service (which VM engineers confirmed at my premises). At times I receive substantially less service delivery than paid for I want a rebate because I have overpaid, mostly because of what amounts to deception by VM. And if I succeed in the court action, I want VM to abide by the court orders - to provide the service contracted, the side effect of which is no capping without clear accounting and reason for why they are doing so. If they cannot deliver line speed in the area, and that means they can only ever offer something not beyond a middle or low package level, then that's what I should pay and it gives me the opportunity to get better elsewhere - along with about 200 people in the area who will follow.

Okay. I'll state some things here that I believe to be fact, which you are entitled to dispute but I regard them as solid.

Firstly, the contract you took with Virgin Media (or any previous entity) was to provide you with an Internet connection subject to (variable) Terms & Conditions. Now, there's a case that variation of Terms & Conditions in the way that Virgin Media (and countless others) deploy is tantamount to sharp practise, but as I understand it predicating a contractual agreement upon another is not in and of itself illegal, and it could (and probably would) be argued that the speed of a connection is ancillary to delivery of a connection in and of itself. You don't get a discount if a 1st class letter you send isn't delivered until the day after tomorrow. By framing their broadband as "up to" it's aspiration, not goal. Virgin promise nothing*, no matter what interpretation their marketing department seeks to create.

Secondly, if you haven't been getting the service you expected, then I would say that you do deserve a rebate. If you've contacted Virgin about slow speeds in the past, then it's usually within the bounds of possibility for them to charge you a rate equivalent to the connection that you do tend to achieve while keeping you on your current package. Where this becomes difficult is when you have expectations of service that Virgin do not share. You are not the only contracting party, and it's based on shared understanding. If you are looking for something from Virgin that they don't believe they are obligated to provide then you've got a recipe for contractual chaos.

Thirdly, remedy in contract is a difficult process. If Virgin state that they have endeavoured to provide you with the service you looked for (and in their defence your multiple technician visits and so on would speak to that) and have continued to fail to be able to do so, then no Judge in his right mind would order them to do so. In their infinite wisdom no Justice can fill sacks with grain that is not there for the filling. So your likely remedy past compensation is termination of contract. That's not to dissuade you, I hasten to add, just to suggest that I do not think it is possible for you to get what you want.

Fourthly, regarding the core of the issue, I think there are two things at play. As has been discussed, oversubscription is a consequence of Virgin (and its predecessors) business models and market exposure. As a listed company who are in direct competition with a former monopoly that is mandated to attempt ADSL provision to all, it effectively cannot refuse a customer broadband. As a company that employs the bulk of its staff in a customer service role through call-centres, it is very hard for it to provide staff capable of comprehending these issues at the point of sale, were it in their interest to do so. Capitalism is the beast within us, given teeth enough to swallow us and our desires. While it provides the service it can, as demand increases (more customers, and more and different usage by customers) supply is obviously stretched. Supply is more costly to provide. Therefore as a stop-gap Subscriber Traffic Management was introduced to mitigate the effects of increased demand while capacity was increased.

Fifthly, STM can be a contributory factor to packet loss, but is not intended to do so. It is a reduction of bandwidth, yes, indisputable, but the only reasons I have seen for packet loss are - A: saturation of connection as upload, resulting in what is tantamount to buffer-overrun (and in my experience this is by far the most common). B: a theoretical (and this is based on my current understanding which is subject to change) opportunity for packet loss when the QoS is changed at the UBR, such that the transport stream to the UBR finds itself wider than that from it to the modem, but with packets that require receipt acknowledgement this should cause no problems, but with UDP being 'best effort' there is a chance that packets sent would be discarded, but and I cannot stress this enough, this would be the product of the protocol and its inability to respond to a change in conditions, rather than a change in conditions themselves. We aren't talking circuits here, after all.

Sixthly, and it's important to remember, other things can slow connections.

Originally Posted by Mike_A

I want nice people within a nice supplier who doesn't cheat.

Pff. Hippie.

*Save disappointment, obviously.

Originally Posted by Mr_SEO

hi... sorry to hear that as a virgin media customer you had to go to the court... this is disgusting act from Virgin Media...

Over the past few day I myself have had the nastiest experiences from Virgin Media. I have been with them for over 8 months but as you know over the past month my 10Mbps service went too slow, so I called Virgin Media and asked for advice. The agent advised me to upgrade my broadband to 20Mbps.

3 days later I called virgin media again to upgrade my 10mbps to 20mbps for another £4 a month. But a week later I received a letter saying that my contractual terms has been renewed, this meant since I upgraded the service to 20mbps, my contract with virgin media restarted for another 12 months. But Virgin Media did not inform me or clarify that my contract would restart if I upgrade my broadband. And even this amendment was stated at the back of the letter. Contractual amendements regarding the length are extremely to customers and these should have good visibility. And my new payments were badly explained with final price stated at all.

I know this may not help you but we together can stop this injustice by Virgin Media. Virgin Media can not treat it's customers like slaves and this will be tolerated in our society. I have already started to print out distribute some printing in my area advising people of my experience. I also have had quite a few replies and phone calls. Please let me know if there's any way we can help you.

So you had been with them for 8 months of a 12 month minimum contract they advised that you upgrade to solve a problem that they should have solved then stung you by telling you your minimum contract had started from day 1 ? out of order!

Get onto ofcom.

They should have solved the issue you were having with the service you were paying for, any upgrade should have been at their expense not yours.

Typical bloody VM.

---------- Post added at 07:56 ---------- Previous post was at 07:45 ----------

Originally Posted by BenMcr

What I'm trying to point out is that the term has been in place for almost 8 years - and in all that time neither the OP or anyone else has objected to it.

Surely time has to be a factor in this. If STM had been brought in and then the OP and others had immediately brought legal action then I could understand it

Or if Virgin did not allow people exit from the contracts to find an alternative I would understand it

But with the clause being there for 8 years, and STM being in place for 2 years without anyone doing so, personally (and in no way the view/policy/training or anything else of Virgin Media) I can't see this having any legs.

I read what you say Ben, but the fact the clause has been there for 8 years has no bearing imo.

The customer afaik has six years from taking out the contract to take any grievance to court, afaik buying a service from VM is no different to buying a washing machine.

As I say, if the customer thinks it is an unfair contract they have redress, it is no good saying " You can just cancel within the given time "
What of the other people who are stung by the contract? ie they dont see it as unfair when it clearly could be, and that can only be determined when someone like the OP goes to court.

At that point the district judge looks at the case and makes a decision, not VM not me nor you or anyone else, the issue is then sorted once and for all.

[caph]

Originally Posted by Mike_A

As I think I mentioned elsewhere, unfair and breached, one element being oversubscribing to the extent they can never provide agreed performance. The things you suffer are catered for.

...and thanks!

Glad to hear it.

Mike, I forgot to mention another point that you will probably need to address in these proceedings.

I started a thread a while back:-

http://www.cableforum.co.uk/board/12...ectations.html

which relates to actual speeds.

Basically to put in laymans terms there are two types of internet service, uncontended (not shared) and contended (shared).

ISPs sell contended bandwidth to home users at a much lower price on the basis that not everyone will be using it at the same time (those ISPs that do offer a guaranteed speed on a contended line can only set the guaranteed speed at 1-2% of headline speed) and will enforce measures to ensure it is shared fairly amongst users when it does start to get used all at the same time.

ISPs sell uncontended bandwidth to business users at a much higher price typically around 750GBP per month for a 10Mb line but the business is guaranteed that speed 24/7.

If ISPs are forced to guarantee headline speeds for home users (effectively making it uncontended) then they will be forced to increase their network capacity dramatically and will be forced to charge uncontended prices. You may want to consider that the judge will probably be well aware of this fact too.

I'm not sure how you will get around this one. Thoughts?

[BenMcr]

Originally Posted by arcamalpha2004

out of order!

Get onto ofcom.

Not to try and divert this, but I wish people would stop saying 'Get onto OFCOM' unless you like giving people the run around!

If you have a complaint against an organisation, OFCOM require you to follow the complaints process through the company, then the ADR (in Virgin's case CISAS) before they will deal with it.

If you contact them and you have not followed this, they will just direct you back to the company

They should have solved the issue you were having with the service you were paying for, any upgrade should have been at their expense not yours.

Yes they should have fixed it without requiring an upgrade

Typical bloody VM.

Typical VM agent not doing their job more like. I know most people won't notice the difference, but I (and everyone I know) would never suggest a speed upgrade to solve a technical issue.

I read what you say Ben, but the fact the clause has been there for 8 years has no bearing imo.

The customer afaik has six years from taking out the contract to take any grievance to court, afaik buying a service from VM is no different to buying a washing machine.

I am aware of this, and I didn't say that it stopped action being taken. I'm saying that it is a factor.

If you bought a washing machine and then waited 2 years before taking action because it was not what you thought it was, but during those two years you had used it without making a complaint or taking action before, it would be noted by the judge.

I would also assume that the court would look at what steps you had taken to resolve your dispute with the supplier before taking legal action and what redress/resolution the company had offered.

[Gary L]

Originally Posted by BenMcr

If you bought a washing machine and then waited 2 years before taking action because it was not what you thought it was, but during those two years you had used it without making a complaint or taking action before, it would be noted by the judge.

But you wasn't given broken promises of how it will be better later on and just sit and wait because something great is going to happen and you'll be very pleased when it does.

[broadbandking]

The only way I can see this been effective is if the UK follow the USA rules and make throttling illegal like USA did to comcast as they was targeting bittorrent but with the UK law system they will prob welcome the throttling.

[BenMcr]

What the banned is Application Traffic Managment i.e. managing BitTorrent only

General Application-Neutral Traffic Managment is fine

[broadbandking]

I know but the main stories over VM appilication throttling is said will only targetting bittorrent but as utorrent most popular torrents apps have protocol encryption I wonder weather this will help keep torrents going at a good speed.