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
!) 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