ISP Sues Former Customer Over Reviews Claiming His Internet Speed Was Less Than A Third Of What Was Advertised

from the 'to-be-sued-in-your-jurisdiction,-press-7' dept

Because this always works out well for the plaintiff, another company is suing another disgruntled customer over his online complaints. Peak Internet, a Colorado ISP, has decided to ensure its former customer receives a broader platform to discuss its alleged connection speed issues. [H/t to Techdirt/Popehat reader Carl O. Graham, who may have shoved this in the wrong inbox…]

Russell Petrick is disabled and spends a lot of time on his computer at home. He signed on with Peak Internet for web access to watch movies and surf the net.

“It was just too terrible to consider keeping,” Petrick said when asked about the service.

He said he was paying $50 a month for Internet download speeds of 20 mbps… Petrick claims the speeds were nowhere near that, and averaged 6.5 mbps.

“The fastest speed I got was 13.6 mbps download and 3.1 mbps upload,” Petrick said. “I didn’t get anywhere near the 20 mbps mark.”

Since KOAA’s “investigation” doesn’t provide much more than “this is a thing that happened” reporting and the judicious deployment of the always-reliable “torn off bits of paper” skeuomorph highlighting words like “defamation” and “Yelp” to indicate a lawsuit is being discussed, I’ve hunted down some of the offending reviews.

Peak Internet’s lawsuit says Petrick’s statements are not only defamatory, but defamatory per se — false statements that are so obviously harmful that the ISP doesn’t even need to prove it’s been harmed.

Since discontinuing his service, Petrick has made defamatory statements about Peak Internet on the Internet, including, but are not limited to, Yelp, YouTube, Superpages, and Yahoo.

The defamatory statements made by Petrick about Peak Internet include, but are not limited to, false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues with the speed of services provided by Peak Internet.

Here’s one of the reviews Peak Internet takes issue with.

????? Beware: This company advertises fast internet speeds, but in reality rarely provides those speeds. Like every ISP, the advertised speeds are up to that speed. You shouldn’t expect to get the top speed all of the time, but you can expect an average speed about 70% of the advertised speed. That’s how a regular ISP works. I am receiving speeds at 50% or lower of the advertised package speed.

Peak has a guaranteed minimum which is nice, but they seem to think the guaranteed minimum is the speed that you should average at. One thing to keep in mind with wireless internet is your speeds may fluctuate due to weather and interference. This is not the issue with the package I ordered, as I explain below.

I order the 20Mbps plan. I ran speed tests and monitored the line for a full week after install, and these were the results:

* Speeds to Peak Internet hosted servers: 90% to 100% of capacity. This is useful in determining that there is not an issue between the transmitter on my house and the tower.
* Speeds to any other speed test server, CDN, website, regular download server: 50% or less of capacity. I tested to multiple types of servers at multiple locations across the USA. My average speed was 7Mbps. My max speed was 12Mbps. I never once went above 12.

When I contacted Peak Internet about this issue and provided them the documentation of the tests I had been running they refused to acknowledge the issue. They said I was getting above their guaranteed minimum (4Mbps) and that I should actually be happy that I was getting 12Mbps. If I wanted that, I would have paid for the 12Mbps plan.

Peak Internet has major issues with peering and their bandwidth providers. When I pay for internet access, that means the whole internet. I’m not paying for fast speed tests to internal servers. They also just don’t seem to care. They didn’t want to look into the speed issue. They didn’t have any desire to provide good service. They just wanted to make their money and not deal with people who call them out on their false advertising.

I feel sorry for somebody less technologically savvy that is paying for their higher packages but getting slow speeds. They don’t know that they’re paying double or triple than they could be for the exact same speed they are getting now with the same company.

Petrick’s other reviews (Yelp, Superpages, BBB, Yahoo!) are all pretty much worded identically and make the same allegations. His complaint with the Better Business Bureau contains a link to his speed tests, which show that over the period of time tested, his connection only cleared 12Mbps once, despite being sold a 20Mbps connection. At times, it even dipped below the “guaranteed minimum” speed of 4Mbps.

Peak Internet says Petrick made “false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues” but Petrick seems to have some data that clearly indicates he never approached the advertised connection speeds during the time period he performed the speed tests.

The second part of that sentence seems to claim that Petrick’s lying about Peak Internet’s reps telling him that he was receiving over the guaranteed minimum connection speed and should be happy occasionally hitting 12 Mbps, even if Peak’s 12/1 package sold for half the price ($25) Petrick was paying.

But Peak Internet’s own response to Petrick’s BBB complaint says pretty much everything Petrick accused the ISP of in his reviews.

The complainant currently subscribes to our $49.95/mo package for a maximum download speed of 20Mbps, with a guaranteed minimum download of 4Mbps. As the complainant has mentioned numerous times in both his BBB complaint, and his support ticket to us, he is achieving over this guaranteed connection speed. Unfortunately, as with every ISP, we can only guarantee the connection and speed within our own network. Once the traffic leaves our network and enters the public Internet we no longer have control over it, and thus cannot guarantee the connection speeds to any third party speedtest server. We value the complainant’s business and would like to apologize that he didn’t receive our email reply to his tickets and hope that he understands the clarification of our policy regarding the advertised minimum connection speeds.

ISP to customer: thanks for paying for a 20 Mbps connection speed. Anything above 4 Mbps is bonus speed. Stop complaining.

For the most part, it doesn’t look like Peak’s lawsuit is going to gain much traction. Almost everything Petrick claims can be backed up, either by speed tests or Peak Internet’s own statements. And as Ken White at Popehat points out, Peak’s suit doesn’t really specify much of anything, other than it would like Russell Petrick to stop complaining:

Notably, Peak Internet does not specify exactly what part of what Petrick said that was false, or exactly how it was false. Remember what I always say: vagueness in defamation claims is a hallmark of meritless thuggery. Here, Peak Internet has used vagueness as a strategy to (1) obscure whether it is suing based in part of protected statements of opinion, (2) hide exactly which statements it contends to be false, avoiding early proof that the challenged statements are true, and (3) increase the costs and pressures of litigation on Petrick to shut him up and deter others from criticizing Peak Internet. You can’t tell from the complaint, for instance, whether Peak Internet’s argument is “our speeds were never that slow that often, he’s lying” (which might be a valid defamation claim) or “his arguments are unfair because these speeds are above the guaranteed minimum speed and we don’t promise the top speed all the time” (which would be an invalid attack on a protected opinion).

A customer who can only approach the speeds of a connection priced at half what he’s paying obviously isn’t going to be happy, but rather than work towards improving connection speeds, the company apparently decided to defer to its fine print. This isn’t a great way to provide customer service and suing someone over bad reviews is an even worse decision.

Saying something is defamatory is basically calling that person a liar. Can Peak Internet prove Petrick was willfully lying when he wrote these reviews? Will it deny that it told him he probably would never approach the advertised speeds it offers but apparently can’t fulfill? It seems like a long shot. The fact that other customers have left reviews complaining about slow connection speeds indicates Petrick’s experience wasn’t an isolated instance. This looks more like a terribly misguided attempt to silence a critic with a little intimidation.

If there is any further question about the legitimacy of this lawsuit, Peak Internet’s own actions taken in conjunction with the appearance of Ken White’s post on the subject show a company hastily mismanaging its reputation. Bad press from an unmerited lawsuit is never a good thing, but Peak is actively making things worse by deleting negative comments from its Facebook page (but at “advertised speeds” as Ken White notes) and apparently posting fake reviews at Yelp (via Adam Steinbaugh.)

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Comments on “ISP Sues Former Customer Over Reviews Claiming His Internet Speed Was Less Than A Third Of What Was Advertised”

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John Fenderson (profile) says:

Peak's argument is obvious

He’s complaining about not getting what they tried their hardest to lead him to believe he would be getting when in fact he’s getting what they always intended to give him instead!

Peak got caught lying, and their secondary defense is the always popular “well, everyone else is lying too, so it can’t be wrong.” Advertising “up to” speeds is deceptive advertising, regardless of who is doing it. I hope the FTC will put a stop to it.

That One Guy (profile) says:

Re: Peak's argument is obvious

I would love it if companies were barred from using the sleaze line of ‘speeds up to, as it’s nothing more than taking the absolute fastest connection a customer could theoretically(but never actually) get, and passing it off as the normal.

Instead, what I’ve like to see happen, would be them forced to list the average speeds their customers can expect, based upon random(so they can’t temporarily game the speeds) monthly checks, performed by a third party that gets a bonus based upon how off the advertised speeds are compared to the tested ones.

Make the speed checks, and the listed speeds, regional, so they couldn’t choose an area with a good network, and pretend all of their network is equally solid, and that would solve that particular sleaze move quite well I’d think.

Atkray (profile) says:

Re: Re: Peak's argument is obvious

No! No average or other soft language, they have had the opportunity and they have failed.

Almost every ISP provides “Business Class” service. They need to provide this for all customers or not advertise any speed whatsoever.

My power company doesn’t provide “up to” 120 vac it is pretty much 120 volts 24/7/365.

ISP’s should state a speed and how may 9’s that speed is available for.

When they fail to deliver then they don’t get paid.
Watch how fast last mile fiber gets built out.

John Fenderson (profile) says:

Re: Re: Re: Peak's argument is obvious

But if they don’t quantify what “business class” means, then it means nothing. So we’re back to metrics.

Personally, I’d prefer that ISPs list two numbers: the guaranteed minimum speed and the median speed within a reasonable geographical area. Theoretically maximum (“up to”) speeds are meaningless.

Vel the Enigmatic says:

After all...

Amazing legal muscle power clearly matters more than having good customer service, right? It’s not like having to give good service is a requirement since everybody needs the internet, right?

So what does he have to complain about? Oh, he’s getting above the minimum guarantee? That should be acceptable, right? Surely this man is just a malcontent who wants to muddy our beautiful, stellar, crystal clean reputation and service. Guess we’ll have to shut him up so we can continue making marry and not giving a damn about what customers want like the peerless fat cats we are.

Hold on a sec, let me get the phone. Hello?

Hello, this is joke.

art guerrilla (profile) says:

Re: Re: Re:

@ rapnel-
do you have any personal experience with these systems, or is it your opinion that we should migrate to those types of systems for de-centralized control reasons ?

i have looked into some of the sat systems (ubiquiti, or some sort of weird spelling TLTG (too lazy to google)), and still not sure what putting together a viable rural system would entail… maybe if i went to a paid seminar they would say… no time, no dime…

IF you have personal experience, i would be interested in picking your brain on the subject… thanks
a r t g u e r r i l l a a t w i n d s t r e a m d o t n e t

Baron von Robber says:

Peak management: Hmm, we have a customer who’s got bad connections speeds. People, we have two choices.

1) We send a technician to check his lines, maybe somebody to ensure our infrastructure is sound. This might cost us around $1,000 to $10,000 depending on what the issue is and might even improve us overall.


2) Spend ~$100,000 on lawyers to sue the guy and likely lose, whilst engaging The Barbara Striesand Effect at full speed costing us even more money in lost sales.


OldMugwump (profile) says:

Re: We send a technician to check his lines

Read the original post. The speeds to Peak’s internal servers were fine. So the lines were fine.

The problem was Peek’s peering to the greater Internet.

Unless the ISP is totally incompetent, they already knew what the problem was. They just didn’t want to do anything about it.

JoeCool (profile) says:

Re: Maybe I should start complaining about CenturyLink

I got CenturyLink as well, but where I am I can only get 1.5 Mbps. The house next door gets 5, but I’m on a different line that’s not as good, and they can’t connect me to the other line. The local CL tech took my number and said he’d call when CL improved the line I’m actually on. Haven’t heard from him in over a year…

Scote (profile) says:

Clear, non-hyperbolic, accurate review - no wonder they sued him.

Russell Petrick’s review seems factual, clearly explained and easy to understand. No wonder Peak sued him for defamation. Cable companies really, really don’t want to be held to the marketing claims they repeatedly make.

If they can’t be responsible for speeds outside of their network, then how can they have a guaranteed minimum speed? That gives the lie to the idea that they can’t take any responsibility for the maxim speed. And if a customer *never* gets the “maximum” speed, in what sense is it in any way an actual number based in any fact? Shouldn’t it just be called “totally made up marketing number speed”?

Anonymous Coward says:

Re: Clear, non-hyperbolic, accurate review - no wonder they sued him.

” And if a customer never gets the “maximum” speed, “

Whoa whoa whoa slow down there buddy…. he can get the maximum speed he just needs to only download from servers housed at his ISP….which is apparently what PEAK is basing it’s speeds on.

Course if you don’t want to read one of the dozens of webpages the ISP serves your SOL.

Lord Binky says:

Ha, I used to have the same issue until my ISP was bought out. I had a full 50Mbps to any connection within my ISP, but the ISP’s external connection to the rest of the internet is crap 20Mpbs at best, and adds 60 ms on that one hop alone. I now can get the higher speed, but the latency hasn’t changed.

Still, you’re paying for a connection to the internet. The ISP’s internal network is not the internet itself. It makes no difference for a customer when discussing their connection to the internet if the limiting factor in a customer’s connection is the ISP’s external connection to the internet. The customer even said the connection to the ISP’s network was good. That’s stupid for them to claim they ARE the internet.

Whatever (profile) says:

Re: Re:

This is a really important point. Connection speed versus download speed is a real hard one for most people to get past – and yes, the ISPs use this to their advantage.

My ISP sells me a 1 gig connection (yeah, lucky dude, right?). However, they do make it clear, it’s a 1 gig connection from my home to their first router, and nothing more. After that point, it is subject to the network overall.

So realistically, even internal to their network (their own speed test) I am more likely to see speeds between 600-800meg a second based on their local network testing. If I speed test outside of the network, 500m would be good.

The mistake most consumers make (and ISPs sell) is the false notion that the speed at which you connect to their network is in fact the speed you get. Some people get 50meg sercice and call it a “50 meg net connection”, but it’s not, it’s a 50 meg local network connection at best. If you ask, their technicians will come to your home, plug in the line tester, and show you the full connection speed.

Mr Patrick’s reviews are correct in the sense that all that he documents is correct, but generally not relevant to the question of his modem connection speed, which is what he is paying for. His only valid true complaint here would be any time the actual throughput speed was slower than the minimum that the ISP advertised or provided for in their contract.

It really would be a good thing is the FTC (or FCC, or whatever 3 letter pencil pushers you want) would create and enforce standards in regards to ISP services. So instead of the current “up to this speed” advertising, you could get a box like thisL

Connection Speed: 20 meg
Minimum guaranteed net speed: 4 meg
bandwidth limit per month: 500 gig

Put that in a pretty box similar and require it in all advertising, and the nonsense and misinformation will stop on both sides.

oh, and for me, while the ISP is likely correct in this case, I think that Mr Patrick should have the right to express his opinions, however, his own testing showed that his local connection was 90%, which is pretty much right considering overhead on the line. His issue as a result isn’t his connection speed, he is getting it. It’s throughput, and that is a different problem.

PaulT (profile) says:

Re: Re: Re:

9 paragraphs to say literally nothing this time, except to try to blame the victim and even support the main point in the article (unless he’s maliciously lying, he has the right to openly voice his complaint without fear of legal repercussions). While missing the central complaint in the article, of course.

“It’s throughput, and that is a different problem.”

Yes, we’ve heard that story from you before. Those poor, poor ISPs just can’t be expected to have enough peering or other capacity in place to deliver the speeds they advertise. They certainly can’t correct their advertising to reflect what they offer in reality. Customers should be happy with 50% or less of what they’re supposedly paying for, and we can presumably blame Netflix for providing a service people dare to use if the ISP can’t keep up. Got it.

John Fenderson (profile) says:

Re: Re: Re:

“not relevant to the question of his modem connection speed, which is what he is paying for.”

I disagree. When companies advertise, they say outright that speed refers to internet access speeds, not the link speed to the ISP’s routers. When people pay the ISP bill, they think (because they’ve been told) they’re paying for the internet access speeds.

This is particularly important when ISPs have taken to intentionally allowing their peering points to degrade.

” If you ask, their technicians will come to your home, plug in the line tester, and show you the full connection speed.”

And when they do this, they’re helping to perpetuate the bait and switch the ISP is trying to engage in.

Anonymous Coward says:

“Unfortunately, as with every ISP, we can only guarantee the connection and speed within our own network. Once the traffic leaves our network and enters the public Internet we no longer have control over it, and thus cannot guarantee the connection speeds to any third party speedtest server.”

And just how big do they print that in their ads?

Anonymous Coward says:

Re: Re:


“Whatever” is correct in that the bandwidth guaranteed by an ISP can only be within their internal network. NO ISP is able to guarantee that speed across the ENTIRE public Internet, as they have no administrative control over other ISP routers, path selection, etc.

HOWEVER – this comment summarizes the frustration that most customers fail to understand, and you NEVER hear this part when ISPs advertise speed information. If they just put this disclaimer IN BIG BOLD LETTERS, maybe, just maybe, then general public might understand what’s going on.

This is why they are perceived as liars – because they do it by deliberate omission.

Anonymous Coward says:

Even just the few first words about how advertised speeds are just theoretical speed…uh-no…not in GWN (.ca), with videotron I got their TGV-30 plan, I get 30mbps down, 12mbps up, from every to actual usage (I sftp a lot of stuff back home from my remote server), and wheter I use sftp, ftps, or just ftp makes no difference in speed, I just like the additional layer sftp provides.

Even the small ISP’s seem to horrible in the US. I won’t make a generalization, I hear Charter and Cox are no-nonsense and truthful most of the time.

Digger says:

Re: Re: Re: Guilty as charged?

Right at the point that it doesn’t state that the minimum applies to only their internal network.

By not limiting their minimum speed guarantee, they are clearly guaranteeing that any traffic will come through at a minimum of 4Mb/S.

Glad to help with the legalsleeze translation for you.

Rikuo (profile) says:

Re: Re: Re: Guilty as charged?

More to the point – find me a person who is interested in paying for as high a speedy connection as possible to the ISP’s machines only, and not concerned at all about speed to the rest of the global Internet.
When I shop around for an ISP, I’m looking for one who gives me great speed to the Internet, not great speed just to their routers that they directly control. Their advertisements show people on Facebook, Youtube, Netflix et al, and often times, show multiple people in the same household doing all of these things simultaneously. Not once has it ever been advertised showing a great connection to ISP Head Office, and just that.

Scote (profile) says:

Re: Loved your clearly articulated review.

I loved your clearly articulated review. It was good explanation stating what your problem was and why it mattered.

I do hope you will be very careful in what you post, though. Even though the legal proceedings against you are utter BS, BS can win if they have the time and money. If the Popehat signal comes through for you, do talk to a lawyer about what and what not to post about this case, if you haven’t already.

I look forward to Peak’s capitulation in this matter as soon as possible!

DigDug says:

Sam Knows...

Hell, anyone can become a member of Sam Knows (Uncle Sam Knows), just sign up with the FCC to join up.

I subscribe to a 20Mb/s DSL service, and prior to asking for (and receiving) my Sam Knows equipment, I was getting about 12Mb/s on a regular basis.

After connecting the equipment, and seeing on the report a first week or 2 of slow service, I saw a significant uptick in speed, to where I’m now getting 24Mb/s.

Play the system, it works.

DannyB (profile) says:

What you say can be used against you

Peak Internet, the plaintiff says:
> Since discontinuing his service, Petrick has made
> defamatory statements about Peak Internet on the Internet

The customer probably had to disconnect his service and switch ISPs in order to even have good enough service in order to complain about his service with Peak Internet.

Mabye Peak’s own statement is evidence of just how bad their service really is.

Or maybe Peak Internet’s poor service is intended to keep people from being able to complain about them online.

Automode (profile) says:

No control of speeds?

I think the line “we can’t control how fast the rest of the internet goes” is a flat out lie on the part of any ISP that would say this. While they do not have control over the equipment, network lines and total traffic of off net and transport providers, they sure as hell do negotiate peering with these providers. If you offer a 50Mbps product knowing full well that the peering agreements upstream will generally mean you will not get 50Mbps, you are selling snake oil. My company spends $1200 a month for 50Mbps service but average about 5 – 10Mbps. I did a speed test using a well known Ookla server in Chigago and managed to pull 11 down and 6 up. I did the same speed test on my 25Mbps service at home and got 28 down and 5 up, actually faster than my rated speed. Then I did a traceroute over both connections and found that each ISP offloaded to Level 3 at the same point. Before that, the traffic was on-net which means that someone is full of shit. If traffic at the office is on-net until it gets to level 3, and I know that the level 3 segment can push 28Mbps with ease, and I’m only getting 11Mbps, then they only possible sources of the bottleneck are either their own network or their peering agreement with Level 3. I would love to see the numbers on that agreement!

Big john says:

I agree

I agree with auto mode couldn’t be on the money any better because the company I am with does the same crap offer 50 down and 28 up and they provide outdated equipment, I haven’t seen any where near that when the there crappy service decides to allow us to sign on 2 days out of the week, christ the router they gave us is discontinued and has been since 03 we joined in 2010,

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