Legal action taken against Virgin Media throttling practices

[Mike_A]

Originally Posted by graf_von_anonym

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.

As a technical forum member elsewhere, familiar with complex research and robust arguments, I am continually astonished and amazed at the mental agility, knowledge and helpfulness on this forum. The opening to your post and what follows is as helpful as it is educated and typical of the ability of people here. Utterly amazing!

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.

Agreed. But is it not that case, as with evolution of law and practices applicable to the financial services industry, that the hallmarks of the contract must be that of fairness, accountability and openness? What VM (and other ISPs) do is to predicate a contract on the basis of obfuscation and change, leaving any contracting customer in the hopeless position of never truly being able to understand the simple fact that they are being deprived of a legitimate expectation: ergo, to receive access to the Internet at a reasonable tolerance within the band of contract they agreed. "Up to" is reasonable, especially in an evolving technology like the Internet. "Down to" almost nothing is where the contract is breached and becomes unfair if it is not a matter of overuse but deliberate withholding of service, yes? It is the lack of accounting for when service levels are not provided that exposes the contractual failure by VM.

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.

Agreed. Indeed, they did rebate in 2007 on the basis of what has gone to court. In other words, the facts are already admitted and proved. And yes, it is all about expectation. I wouldn't mind service dropping to, say, 40-50% a few time a week, of course, for the Internet becomes busy and will become busier. Every day though, at crucial periods of use, receiving from below 1% to 5%, that's not on. Of course, one picks up the telephone and asks them to be fair, refund overpayment and try to keep within a legitimate bandwidth of shared use. But to deliberately restrict to a level that's almost unusable and frustrating to operate - well, that's something else entirely. I, and many others, were and continue to be deprived of fair use without any quid pro quo. That's the heart of the case.

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.

Well, that's part of the reason for adversarial process in court. Their endeavours stopped. They stopped around the time they were testing PHORM and had admitted the need for STM. Frankly, if their equipment in an area or nationwide was saturated they had two options: improve the equipment or cease selling in saturated areas. An option they did not have in contract law was to remove a large proportion of what they had sold whilst continuing to charge at the same level. For reasons provided earlier in the thread, termination of contract is not equitable, nor to force it, reasonable. Nor is it desirable in circumstances where the provider, as a means to reduce service, breaches a chain of statutory law, three laws of which I mentioned earlier and many others - and that's before we get to contract. Scotland adopts Romanic law, where contract is crucial, respected, and evolved at common procedure rather than statute and regulation (generally). A Canadian case in process takes the same issues as me. In summary, Virgin Media stopped their endeavour, can provide the service if they wished (perhaps even with STM to 50%), but have refused to do so.

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.

Agreed. VM's strategy essentially appears as one of marketing. They appear to have shoved contract and obligation to the side in an effort to compete. That's no mitigation in defence. The boundaries of such a dispute are fixed to what was contractually agreed and allowed by law. Their STM practices do not sit within these two parameters.

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.

These are crucially important points to the whole operation of the Internet and the law regarding provision of and access to it.

STM: yes, it can contribute to packet loss. Whether it then breaches statutory criminal and civil law is that word "intended". STM can NEVER not result in packet loss, separation or delay. Ergo, by employing it the intention follows. Saturation and buffer overload: a problem overcome in the early days of microprocessor based computing. Buffer overrun was a common problem in the days of discreet UARTS, USARTS and half/full adders, which are microscaled series of flip-flops. The problems were overcome over two decades ago. The Internet would not run if they had not been because data would leak at every node and gateway throughout the Internet. So buffer overrun is a minor issue wholly discountable in defence of this action. As for the rest, agreed. These issues can only occur, though, at a time of active interference with packets, thus breaching statutory law as regards the like of computer misuse.
I do understand, but all these issues are general and fixable at a technical level as faults/development, not practices. The issue is one of practice. What you write is very informative to the lay observer. Thanks!

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

Of course, from computer set-up and "cleanliness", to operability of websites accessed, traffic - and whether or not the user has switched their machine on!
Truly amazing feedback - thanks again!

Pff. Hippie.

Not in my court garb, I'm not! Man!

Apologies for writing such a big post, but this stuff is crucial to the understanding of bandwidth and line speed. Others may want to expand upon it. I have written at length because I understand that Virgin Media lawyers are interested in it. I am all for them doing so, then the issues can properly be aired in court for resolution of the general issue of service reception.

If I were advising VM, my suggestion would be to gather a marketing team, lawyers and technicians together and actively find a solution to the problem other than the client-wide STM practices adopted. There are many solutions, each competitive in the market place and effective for customer retention and client relations. Given the industry-wide problem they have a real opportunity to take a market advantage and step back into the boundaries of statutory obligation.

[Kursk]

Just a thought Mike but the last time David took on Goliath and won, a great multitude of people lost their champion. It is perhaps possible to lose by winning. I am not saying the cause is or is not just but the consequences might not be palatable or desirable.

Originally Posted by Mike_A

As a technical forum member elsewhere, familiar with complex research and robust arguments, I am continually astonished and amazed at the mental agility, knowledge and helpfulness on this forum. The opening to your post and what follows is as helpful as it is educated and typical of the ability of people here. Utterly amazing!

Thanks for that considered & well informed opinion about the members of this forum - unfortunately, I, and others, seem to have forgotten the long association that contributed to your conclusion regarding our abilities...

I can recommend the ignore list, which I urge you to use for those of us who fail to reach your high standards...

[broadbandking]

Originally Posted by homealone

Thanks for that considered & well informed opinion about the members of this forum - unfortunately, I, and others, seem to have forgotten the long association that contributed to your conclusion regarding our abilities...

I can recommend the ignore list, which I urge you to use for those of us who fail to reach your high standards...

Wasn't he been nice?

[Mike_A]

Originally Posted by homealone

Thanks for that considered & well informed opinion about the members of this forum - unfortunately, I, and others, seem to have forgotten the long association that contributed to your conclusion regarding our abilities...

I can recommend the ignore list, which I urge you to use for those of us who fail to reach your high standards...

Not sure I understand you. Looked around the various threads on this forum from which, it seems to me, the combined contributions of all are high and have helped me a great deal. This forum really shines compared to others.

---------- Post added at 15:23 ---------- Previous post was at 14:59 ----------

Originally Posted by Kursk

Just a thought Mike but the last time David took on Goliath and won, a great multitude of people lost their champion. It is perhaps possible to lose by winning. I am not saying the cause is or is not just but the consequences might not be palatable or desirable.

That, Kursk, has been my greatest dilemma. Philosophically orientated, I took a while to consider the outcome for others, not just me. I was cajoled somewhat when I produced what is now the Act (post #44) on the same basis. After all the thoughts of potential consequences it came down to whether I would adversely affect my neighbour's son's enjoyment of Internet access (they suffer similarly). I concluded that it would enhance it because, although I have a case I am not David nor a crusader. I am simply the first to take the issue.

On the long march into hallowed walls of court, where I hope to state my case clearly enough to warrant a justified conclusion, if right is done there will be public debate and competent government intervention. It is their job to protect the interests of society, not mine.

Me? I paid too much for what I was legitimately entitled and could expect to receive. I want a proportion of that back. If that means the majority receive a proportion back, better Internet access due to less restrictions, and higher prices or restrictions to those greedy enough to negatively affect the majority, then so be it. There is a side issue too. VM have the infrastructure and branding to provide easily the best home ISP facilities in the UK. If it takes a firm boot in the behind to make them understand this then I am quite happy to provide both the boot and momentum to deliver it on target. To me, the matter is a t'uppence but to VM their positive change would be worth tens of millions if not a lot more.

Do remember, I am not alone. This will be a class action once defences are known. There is no leader and will be no loss of champion. "Just cause" actions are never good actions.

[BenMcr]

Originally Posted by Mike_A

STM: yes, it can contribute to packet loss. Whether it then breaches statutory criminal and civil law is that word "intended". STM can NEVER not result in packet loss, separation or delay. Ergo, by employing it the intention follows. Saturation and buffer overload: a problem overcome in the early days of microprocessor based computing. Buffer overrun was a common problem in the days of discreet UARTS, USARTS and half/full adders, which are microscaled series of flip-flops. The problems were overcome over two decades ago. The Internet would not run if they had not been because data would leak at every node and gateway throughout the Internet. So buffer overrun is a minor issue wholly discountable in defence of this action. As for the rest, agreed. These issues can only occur, though, at a time of active interference with packets, thus breaching statutory law as regards the like of computer misuse.
I do understand, but all these issues are general and fixable at a technical level as faults/development, not practices. The issue is one of practice. What you write is very informative to the lay observer. Thanks!

STM is a Criminal Act?

Even if I were to accept that there was an issue of contract law (Which I don't), that is pushing very close to fantasy

Virgin do not change or control your own equipment, they do not access it or modify it in any way without your consent.

Virgin's network ends at the Ethernet port on the modem - everything upstream of that (including the modem) is part of their network, and is under their control.

[Mike_A]

Originally Posted by BenMcr

STM is a Criminal Act?

Even if I were to accept that there was an issue of contract law (Which I don't), that is pushing very close to fantasy

Virgin do not change or control your own equipment, they do not access it or modify it in any way without your consent.

Virgin's network ends at the Ethernet port on the modem - everything upstream of that (including the modem) is part of their network, and is under their control.

I do appreciate what you say Ben. However, the issue has been taken in Canada and was part of what is now a very strong debate with the UK Government in light what the European legislators and authorities had told the UK to do. I refer to my prior post with three points of law.

On your point about changing or controlling equipment. If anyone interferes or accesses a computer by accessing its data, including data in transit, or its operability, including speed, without express prior agreement, then that is a criminal matter. It is more than a mute point, for there are similar laws controlling access to material sent in the post. The criminal legislation is little different here than in USA, Canada, Australia, most of Europe and in China. Until recently in that last country, such interference in data to and from a computer could have resulted in profound penalty: and that with zero possibility of appeal. This genre of law is about protecting private and sensitive correspondence, including its transmission. I do agree the law's a bit of an ass on this one, for it does not fully take into account that a packet of data may exist midway somewhere, but the terms of it I provided earlier apply.

Originally Posted by Mike_A

I do appreciate what you say Ben. However, the issue has been taken in Canada and was part of what is now a very strong debate with the UK Government in light what the European legislators and authorities had told the UK to do. I refer to my prior post with three points of law.

On your point about changing or controlling equipment. If anyone interferes or accesses a computer by accessing its data, including data in transit, or its operability, including speed, without express prior agreement, then that is a criminal matter. It is more than a mute point, for there are similar laws controlling access to material sent in the post. The criminal legislation is little different here than in USA, Canada, Australia, most of Europe and in China. Until recently in that last country, such interference in data to and from a computer could have resulted in profound penalty: and that with zero possibility of appeal. This genre of law is about protecting private and sensitive correspondence, including its transmission. I do agree the law's a bit of an ass on this one, for it does not fully take into account that a packet of data may exist midway somewhere, but the terms of it I provided earlier apply.

Could you provide a link/reference to this, please (UK case law)?

And in the nicest possible way, China isn't probably the best reference regarding data transmission laws, as I know for a fact they (the Government/authorities) intercept/filter the content of our Virtual Learning Environment (based in the UK, accessed by Chinese students) systems.

[Raistlin]

Originally Posted by foreverwar

Could you provide a link/reference to this, please (UK case law)?

<sits back>

This I've got to see

[Ignitionnet]

Could we get mod provided popcorn for the readers of this thread?

[BenMcr]

Originally Posted by Mike_A

I do appreciate what you say Ben. However, the issue has been taken in Canada

Yes it was - at wholesale level - and it deemed legal.

Even the review that is going to take place is not about whether STM or Application Management should be used - but the levels that are acceptable

http://www.crtc.gc.ca/eng/news/relea...08/r081120.htm

[Ignitionnet]

Originally Posted by BenMcr

Yes it was - and it deemed legal - as long as notice was given

http://www.crtc.gc.ca/eng/news/relea...08/r081120.htm

That doesn't relate to this Ben, it relates to Bell Canada applying throttling to their wholesale customers without telling them. By any sensible stretch of the imagination it was wrong but Bell have more and better lobbyists than CAIP.

CRTC are industry monkey boys anyway, bit like Ofcom.

[BenMcr]

Ok then - the review that has been announced centres around DPI http://www.privcom.gc.ca/information...c_090218_e.asp

which Virgin don't use for their STM

---------- Post added at 16:53 ---------- Previous post was at 16:50 ----------

And according to this article http://www.cbc.ca/technology/story/2...-deadline.html the issue is about Application/DPI based STM, and whether that can be used, or whether wholesale STM is preferable.

[Mike_A]

Originally Posted by foreverwar

Could you provide a link/reference to this, please (UK case law)?

And in the nicest possible way, China isn't probably the best reference regarding data transmission laws, as I know for a fact they (the Government/authorities) intercept/filter the content of our Virtual Learning Environment (based in the UK, accessed by Chinese students) systems.

Of course. I do not set out the authorities chapter and verse for that would expose the extent of my advocacy in court. However, by way of an introduction:

The Canadian case, which has already past the hurdles generally expressed by helpful VM posters in that (loosely) the defence likely to taken by VM was rebuffed and further procedure allowed to continue:

The PHORM debarcle, which relates to the present case in every aspect except the actual mining use of private data:
http://www.p2pnet.net/story/15671
...and a paper produced (I think) by the Cambridge think tank on issues we are discussing here (and from which UK Government seeks direction):
http://www.theregister.co.uk/2009/02...action_threat/
http://www.p2pnet.net/story/15980

These are good introductions to the general concept of the law applied to traffic management methods but are far from the whole law. There are authorities from prior court cases which support the various points of law relevant to throttling at every phase of its effect.

Get your popcorn ready, its a long read!

As for the China issue you mentioned, it is one area of my expertise. Apart from tutoring Chinese postgraduates and having an English language school for a while, I also engaged in significant activity here and in China as regards halting immigration abuse of the student visa system. It was me who leaked the story as regards immigration abuse by agents there, and universities and English language schools here, to the BBC during 2004. As a result the then SoS Blunkett changed immigration procedures (23 Apr 2004 I recall). In China I had significant contact with Chinese authorities at government and PSB level and came to know the precise practice Chinese data interception works through (then) nine gateways. My partner is Chinese too! My point was that similar laws exist there to here but until recently had far greater penalty than we would accept.

As I stated before, but obviously I was not clear enough, could you provide a existing case reference that backs up your premise regarding a criminal act (UK criminal law), specifically regarding speed?

The reason I ask is that one of your links states -
"Torts (Interference with Goods) Act 1977

Section 1b of the Act defines “trespass to goods” as ” wrongful interference of goods”. (TA 1977) To this author’s knowledge there is presently no case law in the UK with regards to altering the behaviour of a computer without the consent of the owner. However, the issue of Cyber-Trespass is a debate which has grown over recent years with the biggest break throughs being in the US."
And that is in reference to Phorm, not STM.