Calif. Customers Sue Excite@Home

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Frustrated by service outages and data stream speed caps, some California subscribers have filed a potential class-action lawsuit against Excite@Home Corp.

Four consumers-James Blackford, William Chappell, Valentine Guillien and Olga Johnson-filed the civil action on March 12 in San Mateo Superior Court. The suit alleges that the data-over-cable provider and one of its MSO backers, AT&T Broadband, violated state consumer-protection laws.

The complaint alleges Excite@Home engaged in unlawful, unfair and deceptive business practices; unfair advertising; fraud and deceit; negligent misrepresentation and unjust enrichment. A spokeswoman for the data-over-cable provider said the company does not comment on legal actions.

According to the complaint, each plaintiff tested the performance claims Excite@Home makes in its advertising and found that it failed to measure up. The service is not "100 times faster than a 28.8 modem," nor are customers free from unexpected disconnects, the suit asserts.

The customers also allege they are barred from some chat rooms and oppose the 1-kilobit upstream cap on the service. Customer service is not available 24 hours a day, seven days per week, the plaintiffs allege, and electronic mail is especially unreliable.

The consumers claim the service's failings have cost them at least $50,000, according to the filing, but no other recovery amount is listed.

The suit echoes complaints in other markets, but consumers and regulators have taken different avenues in seeking a remedy. Fremont, Calif., was the first community to develop customer-service standards specifically for cable-modem customers.

Other jurisdictions, such as Vancouver, Wash., are considering franchise violation findings against AT&T Broadband. Those locales generally have not sought monetary relief or damages, but rather speedy resolution to consumer complaints.

Dan Calic, head of the Fremont user's group and one of the architects of the service standard that was instituted there, criticized the suit.

"I'm pro-user, but looking at this suit, it looks like the plaintiffs are thinking with their emotions, not with their heads," he said. He is fearful such a suit could set a dangerous precedent if it prompted regulation of the Internet.

"There are other remedies available to them," he said. "If as a user, I experience down time, I have the right to seek individual compensation."

Calic also endorsed the speed cap. When Excite@Home launched in Fremont, speeds were blazing, he recalled.

But some individuals took advantage of that speed, deploying servers to assist home-based businesses, and everyone else on the node lost access, he said. Initially, data service employees hunted down these server users, but such investigations are not cost-effective. The long-term remedy has been to cap residential streams and nudge business users with more bandwidth demands toward Excite@Work service.

A preliminary hearing on the suit has been scheduled for July 18.

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