In light of recent news that AT&T has decided to discontinue offering it’s DSL services, coinciding with the being in the midst of a public health crisis that forced the world to rely on the internet, it is time to reconsider the relationship that consumers have with their Internet Service Providers (ISPs) and determine whether the system is actually working or if there a more equitable solution is required to support consumers.
The ISP/Consumer Relationship
The relationship between ISPs and their customers is unbalanced. The ISPs decide what services to offer and where to offer them, often based on where they can see the best return on investment. That’s sound decision-making when considering shareholders, but not necessarily for customers. Once the service is deployed, customers in the United States pay some of the highest rates in the world for access to a broadband connection.
In order to receive services, customers must sign a service agreement with the provider. In that agreement, there are clauses that waive ISP liability for service disruptions for “reasonable network management practices,” and force the consumer to “expressly assume the risks of any damages resulting from High Risk Activities.” High Risk Activities are defined, in a non-exhaustive list, as “vital business, or personal communications, or activities where absolutely accurate data or information is required.”
Essentially, consumers sign a contract but have no guarantee of performance and, in the event of a service outage, the most they can hope to receive is a pro rata credit. The agreement can even state that unless prohibited by law, the pro rata credit, “shall be your sole and exclusive remedy for an interruption in services.”
If your network goes down in today’s climate, the consequences can be dire. You could be unable go to work, attend classes, appear for your Zoom court hearing, access remote medical services, access the news and information, or even talk to your hospitalized or quarantined family or friends. Not having that connection can have disastrous effects for people financially, legally, medically, and more. Yet, consumers have no ability to bargain over the terms of the ISP service contracts. Consumers may even be unable to shop for an alternative provider because there is only one in their region.
A New Equitable Model
Under the current system, a consumer can complain to the regulatory bodies such as the Federal Communications Commission (FCC) or a state utility commission about bad behavior by the ISPs. Based on FCC data, between 2014 and 2018, there were roughly 141,102 complaints regarding internet services.
Losing internet connectivity was frustrating before the pandemic. Now, it could be detrimental. A new model where independent ombudspersons can receive consumer complaints about the loss of the connection as well as the harms that stemmed from the loss can create an equitable outcome and level the field.
Consumers can begin seeking relief by calling their ISP to complain about the outage, as they do today. The ISP can respond by discounting the bill accordingly and provide information about when the outage would be resolved. As a follow up, the ISP sends an email to the consumer providing the results of their call along with a link directing the consumer to the ombudspersons group in order to appeal the ISPs decision in the matter or escalate their complaint for further redress.
The consumer then fills out a form, providing background information about what happened – duration of the outage, timing of the outage, lack of notice about network maintenance, any concessions by the ISP as a result of the outage, and the subsequent harm that the consumer suffered. Once they submit the complaint, a case number is assigned and a copy of the complaint is sent to the ombudsperson group, the ISP, and the consumer.
After filing, the ombudsperson has 10 days to review and request relevant information from the ISP. Since the ISP had previously received the complaint, they would have 5 days to respond to any requests for information. The ombudsperson would have the technical and legal knowledge to see if the ISP was shifting blame for the outage and help the consumer understand what happened using plain language. There will be instances where the harm was unavoidable, such as infrastructure being damaged by construction work.
The ombudsperson then creates an online portal where they can engage with the consumer and the ISP to resolve the matter. It’s likely that these scenarios will be infrequent and involve circumstances of substantial economic or personal harm. This online portal gives the consumer the ability to engage in the process and speak to the harms they endured. The ombudsperson would function as a mediator, communicating independently through synchronous and asynchronous chat, seeking permission to share information with opposing parties, attempting to bring the parties together for an equitable outcome that addresses the harms.
If successful, the process would provide remedies ranging from a bill reduction to compensation for the harms that resulted from the outage. If the ISP can show the outage was beyond their control, then documentation is provided to the consumer in an effort to aid them in mitigating any harm that came from the loss in connectivity. Additionally, this process can be used to evaluate how the ISP supports its consumers, such as prior notice when maintenance is planned or improved monitoring of network functionality.
Whatever the parties agreed to would become a binding contract enforceable by the courts. If the ISP does not comply, they would be liable for a breach of contract claim and subject to FCC fines.
If the process doesn’t result in an outcome the consumer feels is fair, they can take a report of their claim and escalate the issue to the FCC or state utility commission to raise their concerns.
Unlikely, But Necessary
It is unlikely that this model will be seen under the current regulatory regime. Currently, the FCC essentially has a presumption of forbearance from regulating broadband services. The FCC even removed this possible enforcement mechanism when it passed the Restoring Internet Freedom Order.
However, there must be a more equitable way to redress the actual harms a consumer suffered in the event of a network outage when ISPs get to determine where service is available, how it will be delivered, as well as the limits to which they will be responsible. A network connection is mandatory to participate in society during a pandemic, and giving consumers a semblance of protections is necessary.
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