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Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 1 of 43 Page ID #:1130
`
`JAMES REILLY DOLAN
`Acting General Counsel
`
`ROBERT J. QUIGLEY, SBN 302879
`rquigley@ftc.gov
`BARBARA CHUN, SBN 186907
`bchun@ftc.gov
`MILES D. FREEMAN, SBN 299302
`mfreeman@ftc.gov
`MATTHEW H. FINE, SBN 300808
`mfine@ftc.gov
`Federal Trade Commission
`10990 Wilshire Blvd., Suite 400
`Los Angeles, CA 90024
`Tel: (310) 824-4300
`Fax: (310) 824-4380
`
`Attorneys for Plaintiff Federal Trade Commission
`
`[Additional Attorneys for Plaintiffs and Defendants Listed on Signature Pages]
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`FEDERAL TRADE COMMISSION and
`THE PEOPLE OF THE STATE OF
`CALIFORNIA,
`
`Case No. 2:21-cv-4155 RGK-MAA
`
`STIPULATION AS TO ENTRY
`OF ORDER FOR
`PERMANENT INJUNCTION,
`MONETARY JUDGMENT, AND
`OTHER RELIEF
`
`Plaintiffs,
`
`v.
`
`FRONTIER COMMUNICATIONS
`CORPORATION, et al.,
`
`Defendants.
`
`Plaintiffs, the Federal Trade Commission (“Commission” or “FTC”) and the
`
`1
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`

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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 2 of 43 Page ID #:1131
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`People of the State of California (“California,” or the “People”), by and through the
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`District Attorneys of Los Angeles County and Riverside County (collectively,
`
`“Plaintiffs”) filed their Complaint for Preliminary Injunction, Permanent Injunction,
`
`Monetary Relief and Other Relief (“Complaint”), in this matter, pursuant to Section
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`13(b) of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. § 53(b), and
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`California Unfair Competition Law (“UCL”), Bus. & Prof. Code § 17200 et seq., and the
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`California False Advertising Law (“FAL”), Bus. & Prof. Code § 17500, et seq. On or
`
`about April 30, 2021, Defendant Frontier Communications Corp. dissolved and
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`substantially all of its assets vested in Defendant Frontier Communications Holdings,
`
`LLC, which in turn is wholly owned by Defendant Frontier Communications
`
`Intermediate, LLC, which in turn is wholly owned by Frontier Communications Parent,
`
`Inc. (hereinafter collectively referred to as “Defendants”). Plaintiffs and Defendants
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`stipulate to the entry of a Stipulated Order for Permanent Injunction, Monetary
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`Judgment, and Other Relief (“Stipulated Order”) to resolve all matters in dispute in this
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`action between them.
`
`Plaintiffs and Defendants have agreed to entry of the Stipulated Order (lodged
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`concurrently with this Stipulation) to resolve all claims against Defendants in this action.
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`Plaintiffs and Defendants have consented to entry of the Stipulated Order without trial or
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`adjudication of any issue of law or fact herein.
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`Plaintiffs and Defendants hereby stipulate to entry of a Stipulated Order for
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 3 of 43 Page ID #:1132
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`Permanent Injunction, Monetary Judgment, and Other Relief with the following terms:
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`FINDINGS
`This Court has subject matter jurisdiction over this matter.
`
`The Complaint charges that Defendants participated in deceptive and unfair acts
`
`1.
`
`2.
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`or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45, and Sections 17500
`
`and 17200 of California Business and Professions Code, Cal. Bus. & Prof. Code
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`§§ 17500, 17200, in connection with the marketing and sale of residential digital
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`subscriber line (“DSL”) Internet service and the billing, charging, or collecting for that
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`DSL Internet service.
`
`3.
`
`Defendants neither admit nor deny any of the claims or allegations in the
`
`Complaint, except as specifically stated in this Order. Only for purposes of this action,
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`Defendants admit the facts necessary to establish personal jurisdiction.
`
`4.
`
`Defendants waive any claim that they may have under the Equal Access to Justice
`
`Act, 28 U.S.C. § 2412, concerning the prosecution of this action through the date of this
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`Order, and agrees to bear its own costs and attorney fees.
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`5.
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`Defendants and Plaintiffs waive all rights to appeal or otherwise challenge or
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`contest the validity of this Order.
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 4 of 43 Page ID #:1133
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`DEFINITIONS
`For the purpose of this Order, the following definitions apply:
`“Advertised Speed” means the download speed advertised or offered, including
`
`A.
`
`at point of sale, in association with a specific Internet Service Plan, such as “18 Mbps,”
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`“As Fast As 18 Mbps,” “Max Speeds As Fast As 18 Mbps,” or “9 to 18 Mbps.”
`
`B.
`
`“Clear(ly) and Conspicuous(ly)” means that a required disclosure is difficult to
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`miss (i.e., easily noticeable) and easily understandable by ordinary consumers, including
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`in all of the following ways:
`
`1.
`
`In any communication that is solely visual or solely audible, the disclosure
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`must be made through the same means through which the communication is
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`presented. In any communication made through both visual and audible means,
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`such as a television advertisement, the disclosure must be made visually or
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`audibly.
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`2.
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`A visual disclosure, by its size, contrast, location, the length of time it
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`appears, and other characteristics, must stand out from any accompanying text or
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`other visual elements so that it is easily noticed, read, and understood.
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`3.
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`An audible disclosure, including by telephone or streaming video, must be
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`delivered in a volume, speed, and cadence sufficient for ordinary consumers to
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`easily hear and understand it.
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`4.
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`In any communication using an interactive electronic medium, such as the
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`Internet or software, the disclosure must be unavoidable.
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 5 of 43 Page ID #:1134
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`5.
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`The disclosure must use diction and syntax understandable to ordinary
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`consumers and must appear in each language in which the representation that
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`requires the disclosure appears.
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`6.
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`The disclosure must comply with these requirements in each medium
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`through which it is received, including all electronic devices and face-to-face
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`communications.
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`7.
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`The disclosure must not be contradicted or mitigated by, or inconsistent
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`with, anything else in the communication.
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`8. When the representation or sales practice targets a specific audience, such
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`as children, the elderly, or the terminally ill, “ordinary consumers” includes
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`reasonable members of that group.
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`C.
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`“Close Proximity” means that the disclosure is very near the triggering
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`representation. For example, a disclosure made through a hyperlink, pop-up, interstitial,
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`or other similar technique is not in close proximity to the triggering representation.
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`D.
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`“Congestion Report” means Frontier’s “Monthly DSLAM Congestion Report,”
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`which provides congestion information for all DSLAM uplinks and the circuits that
`
`affect more than one DSLAM, including Host, Aggregator, and BRAS uplinks.
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`E.
`
`“Customer” means a consumer who subscribes to an Internet Service Plan with
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`an Advertised Speed.
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 6 of 43 Page ID #:1135
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`F.
`
`“Defendants” means Frontier Communications Corporation,1 Frontier
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`Communications Parent, Inc., Frontier Communications Intermediate, LLC, Frontier
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`Communications Holdings, LLC, and their successors and assigns.
`
`G.
`
`H.
`
`I.
`
`“DSL” means digital subscriber line.
`
`“DSLAM” means DSL access multiplexer.
`
` “Existing Customer” means a Customer who is already subscribed to an Internet
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`Service Plan with an Advertised Speed and who is not a New Customer. Customers who
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`subscribe to an Internet Service plan in the thirty (30) day period after entry of this Order
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`will be considered Existing Customers.
`
`J.
`
`“Internet Service Plan” means a service to provide residential Internet access via
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`DSL.
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`K.
`
`“Material Restriction” means a restriction on the amount or speed of Internet
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`access that is likely to affect a Customer’s purchase or use of the Internet Service Plan.
`
`L.
`
`“New Customer” means a person who becomes a Customer thirty (30) days or
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`more after entry of this Order, i.e., a person who subscribes to an Internet Service Plan
`
`with an Advertised Speed, an Existing Customer who changes service plans to an
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`Internet Service Plan with an Advertised Speed, or both.
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`M.
`
`“Provision” and “Provisioned” refer to the Defendant’s setting of the speed on
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`Defendant’s network for a Customer’s DSL Internet service.
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`1 Defendant Frontier Communications Corp. dissolved on or about April 30, 2021.
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 7 of 43 Page ID #:1136
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`N.
`
` “Speed Assessment Procedure” means a procedure, algorithm, process, or data
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`analysis, based on competent and reliable evidence, for assessing the speed at which
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`Defendant is able to provide DSL Internet service to a residential address. For purposes
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`of this Definition and references hereto, “competent and reliable evidence” means tests,
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`including loop tests, analyses, research, or studies that have (1) been conducted and
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`evaluated in an objective manner by qualified personnel, and (2) are generally accepted
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`to yield accurate and reliable results, and provides a reasonable basis for representations
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`concerning an Advertised Speed, such as the process set forth in Exhibit A.
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`I.
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`PROHIBITION AGAINST MISREPRESENTING INTERNET SERVICES
`
`IT IS ORDERED that Defendants, Defendants’ officers, agents, and employees,
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`and all other persons in active concert or participation with any of them, who receive
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`actual notice of this Order, whether acting directly or indirectly, in connection with the
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`advertising, marketing, or sale of any Internet Service Plan, are permanently restrained
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`and enjoined from, expressly or by implication:
`
`A.
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`Advertising or marketing Internet Service Plans with Advertised Speeds:
`
`1.
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`in television and radio advertisements or other ads disseminated to or
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`meant for a general audience and that contain Advertised Speed claims, unless
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`Defendants Clearly and Conspicuously disclose that the maximum Advertised Speeds
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`may not be available in a consumer’s area if that is the case; and that the actual speed a
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`Customer is likely to be able to obtain is subject to multiple factors, if that is the case;
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 8 of 43 Page ID #:1137
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`2.
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`in Internet advertisements or other advertisements that appear when a
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`consumer has provided his or her residential address, or if Defendants have targeted the
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`consumers based on their residential address or zip code, if the maximum Advertised
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`Speed exceeds what is available in those consumers’ zip codes;
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`3.
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`in mailer advertisements or other advertisements targeted to
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`consumers based on their geographic area or neighborhood, if the maximum Advertised
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`Speed exceeds what is available to the consumers in the geographic area or
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`neighborhood receiving such advertisements.
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`B. Misrepresenting the amount or speed of data transmission that an Internet
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`Service Plan will provide;
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`C. Making any representation about the amount or speed of data transmission
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`without disclosing, Clearly and Conspicuously to the representation, all Material
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`Restrictions to obtaining the represented amount or speed of data transmission. For
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`purposes of this Order:
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`1.
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`For any representation that an Internet Service Plan will deliver an
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`Advertised Speed, the advertisement must disclose Clearly and Conspicuously and in
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`Close Proximity to the representation:
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`a) the range of speeds available for that tier, such as “6.1 Mbps to 12
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`Mbps download”; and
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 9 of 43 Page ID #:1138
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`b) that the average speed may be lower than the maximum speed
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`represented, if that is the case.
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`2.
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`For internet ads or mailer ads, if the actual speed a Customer is likely
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`to be able to obtain is subject to multiple factors, the advertisement must contain a Clear
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`and Conspicuous link or website location to a Clear and Conspicuous disclosure that
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`states that actual speed is subject to multiple factors, such as (i) the effect of WiFi; (ii)
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`multiple users on the same account; (iii) device limitations; and (iv) network congestion.
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`and
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`D. Misrepresenting the performance or central characteristics of an Internet
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`Service Plan.
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`II.
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`PROHIBITED SUBSCRIPTION AND BILLING PRACTICES
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`IT IS ORDERED that, beginning 60 days after entry of this Order, Defendants,
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`Defendants’ officers, agents, and employees, and all other persons in active concert or
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`participation with any of them, who receive actual notice of this Order, whether acting
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`directly or indirectly, in connection with any Internet Service Plan, are permanently
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`restrained and enjoined from:
`
`A.
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`At the point of sale, subscribing or upgrading any New Customer to an
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`Internet Service Plan with an Advertised Speed unless the geographic location of the
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`New Customer’s residential address provides reason to believe that Defendants can
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`provide service at the Advertised Speed to the New Customer;
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 10 of 43 Page ID #:1139
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`B.
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`Provisioning any New Customer for an Internet Service Plan with an
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`Advertised Speed unless the Customer is Provisioned within 10% of the maximum
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`Advertised Speed or higher for that Internet Service Plan, provided that if a Customer
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`cannot be Provisioned within 10% of the maximum Advertised Speed or higher,
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`Defendant shall notify the New Customer as set forth in Section III.B of this Order;
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`C.
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`Subscribing any New Customer to an Internet Service Plan with service to
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`be provided by a DSLAM for which Defendants’ Congestion Reports indicate that the
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`DSLAM has had an average peak utilization of 90% or greater during at least the three
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`months prior to service installation;
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`D.
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`Billing, charging, collecting, or attempting to collect from any New
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`Customer the costs or fees for an Internet Service Plan with an Advertised Speed unless
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`a Speed Assessment Procedure performed at the time of service installation, such as the
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`one set forth in Exhibit A, provides reason to believe that Defendants can provide service
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`within 10% of the maximum Advertised Speed or higher to the New Customer’s
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`residential address; provided, however, that Defendants shall not be deemed to be in
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`violation of this Section II.D if the Customer continues with the current Internet Service
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`Plan after receiving written notice as provided in Section III of this Order; and
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`E.
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`Billing, charging, collecting, or attempting to collect from any Existing
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`Customer or New Customer the costs or fees for an Internet Service Plan with an
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`Advertised Speed if, after receipt of an inquiry or complaint asserting that the
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 11 of 43 Page ID #:1140
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`Customer’s Internet speed experienced is slower than the Advertised Speed and the
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`Customer requests or it is otherwise clear from the communication that Defendant
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`should investigate or take action to address service speed, Defendants do not, at their
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`option, (a) initiate a review to respond to the Customer’s complaint, such as through a
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`Speed Assessment Procedure comparable to the one set forth in Exhibit B, and if the
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`review reveals that the Customer is unable to receive at least 90% of the maximum
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`Advertised Speed or higher, Defendants shall issue a notice in the form shown in
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`Attachment D, or in such form approved in writing by the Commission or its designee;
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`or (b) issue a notice in the form shown in Attachment D, or in such form approved in
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`writing by the Commission or its designee. Defendants shall issue the notice via any
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`method Defendants use to communicate with the Customer (including but not limited to
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`mail, e-mail, or text message, which may contain a hyperlink). Defendants’ Notice
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`described in this Section shall:
`
`1.
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`Offer the Customer the option to (i) continue with the current Internet
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`Service Plan; (ii) discontinue the Internet Service Plan without incurring any
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`additional fee associated with an Internet Service Plan, such as an early
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`termination fee, for cancelling the Internet Service Plan; or (iii) move to another
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`Internet Service plan product tier in which the Customer can be Provisioned at a
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`minimum of 90% of the maximum Advertised Speed; and
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 12 of 43 Page ID #:1141
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`2.
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`Not include anything in or with the Notice or email other than the
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`Notice in the form shown in Attachment D, or in such form approved in writing by
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`the Commission or its designee, including any billing statements or marketing
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`messages.
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`III. REQUIRED ACTIONS FOR NEW AND UPGRADING CUSTOMERS
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`IT IS FURTHER ORDERED that Defendants will, not later than 60 days after the
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`entry of this Order, or by October 31, 2022, whichever is later (the “effective date of this
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`Section”):
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`A.
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`Clearly and Conspicuously disclose, to all New Customers, at or before the
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`point of sale or change in Internet Service Plan with an Advertised Speed: the maximum
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`Advertised Speed, the range of Internet service speeds Defendants have reason to believe
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`the New Customer is likely to receive based on the geographic location of the New
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`Customer’s residential address, and how such speeds may impact the New Customer’s
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`use of certain online content and services, e.g., streaming or gaming;
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`B. Within 10 business days of the time Internet service with an Advertised
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`Speed is installed, whether by a technician, self-installation, or another method, or within
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`10 business days of the effective date of this Section, Defendants shall provide New
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`Customers who have been Provisioned at less than the maximum Advertised Speed for
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`their Internet Service Plan with a notice in the form shown in Attachment A, or in such
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`form approved in writing by the Commission or its designee, via any method Defendants
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 13 of 43 Page ID #:1142
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`use to communicate with the Customer (including but not limited to mail, e-mail, or text
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`message, which may contain a hyperlink). Defendants’ Notice described in this Section
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`shall:
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`1.
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`Clearly and Conspicuously inform the New Customer of the
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`maximum Advertised Speed for the Internet Service Plan to which the New
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`Customer is subscribed; the maximum speed for which the New Customer is
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`Provisioned; the range of Internet service speeds Defendants have reason to
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`believe the New Customer is likely to receive based on a Speed Assessment
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`Procedure performed at the time of service installation, such as the one set forth in
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`Exhibit A; and how such speeds may impact the New Customer’s access to
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`various Internet services, such as streaming or gaming;
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`2.
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`Offer the New Customer the options to (i) discontinue the Internet
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`Service Plan without incurring any additional fee associated with an Internet
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`Service Plan, such as an early termination fee, for cancelling the Internet Service
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`Plan, (ii) move to another Internet Service Plan product tier for which the New
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`Customer can be Provisioned at a minimum of 90% of the maximum Advertised
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`Speed, or (iii) continue with the current Internet Service Plan, in the form shown
`
`in Attachment A, or in such form approved in writing by the Commission or its
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`designee. If the New Customer elects to discontinue the Internet Service Plan,
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 14 of 43 Page ID #:1143
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`Defendants shall refund or waive any applicable installation, service connection,
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`and early termination fees;
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`3.
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`Not include anything in or with the Notice or email other than the
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`Notice in the form shown in Attachment A, or in such form approved in writing by
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`the Commission or its designee, including any billing statements or marketing
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`messages.
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`4.
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`In States in which Defendants and/or Defendants’ subsidiaries or
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`affiliates have entered a settlement with a state regulator concerning Advertised
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`Speeds prior to the effective date of this Order, Defendants may, in place of the
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`Notice in the form shown in Attachment A, or in such form approved in writing by
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`the Commission or its designee, use the form of notice agreed to with such State to
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`provide the consumer disclosures described in Section III.B.1 of this Order, and
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`the options to discontinue, change, or continue Internet Service Plans described in
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`Section III.B.2. In other States, Defendants shall use the form of notice in the
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`form shown in Attachment A, or in such form approved in writing by the
`
`Commission or its designee.
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`IV. REQUIRED ACTIONS REGARDING EXISTING CUSTOMERS
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`IT IS FURTHER ORDERED that, within 90 days after the entry of this Order, or
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`by October 31, 2022, whichever is later, Defendants will identify each Existing
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 15 of 43 Page ID #:1144
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`Customer with an Internet Service Plan who has not received notice pursuant to
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`Defendants’ settlement with a state regulator concerning Advertised Speeds for whom (i)
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`the Provisioned Speed is less than the maximum Advertised Speed to which the
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`Customer is subscribed, or (ii) the Provisioned Speed cannot be readily ascertained, and
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`(iii) Customers identified in connection with Defendants’ ongoing reporting obligations
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`under Sections VIII.D.3–5 of this Order. Defendants shall not unilaterally discontinue
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`Internet Service to Customers solely on account of their obligations under this Order.
`
`For each Customer identified by Defendants under this Section who has not
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`previously received notice under this Section or Section II, III or V of this Order:
`
`A.
`
`Defendants shall, for Existing Customers for whom the Provisioned Speed
`
`is less than the maximum Advertised Speed, issue a notice in the form shown in
`
`Attachment B, or in such form approved in writing by the Commission or its designee,
`
`via any method Defendants use to communicate with the Existing Customer (including
`
`but not limited to mail, e-mail, or text message, which may contain a hyperlink).
`
`Defendants’ Notice described in this Section shall:
`
`1.
`
`Clearly and Conspicuously inform the Existing Customer of the
`
`maximum Advertised Speed for the Internet Service Plan to which the Existing
`
`Customer is subscribed; the maximum speed for which the Existing Customer is
`
`Provisioned (if readily ascertainable); the range of Internet service speeds
`
`Defendants have reason to believe the Existing Customer is likely to receive based
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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 16 of 43 Page ID #:1145
`
`on the geographic location of the Existing Customer’s residential address; and
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`how such speeds may impact the Existing Customer’s access to various Internet
`
`services, such as streaming or gaming;
`
`2.
`
`Offer the Existing Customer the options to (i) continue with the
`
`current Internet Service Plan; (ii) discontinue the current Internet Service Plan
`
`without incurring any additional fee associated with an Internet Service Plan, such
`
`as an early termination fee, for cancelling the Internet Service Plan; and (iii) move
`
`to another Internet Service Plan product tier in which the Existing Customer can
`
`be Provisioned at a minimum of 90% of the maximum Advertised Speed, in the
`
`form shown in Attachment B, or in such form approved in writing by the
`
`Commission or its designee, and
`
`3.
`
`Not include anything in or with the Notice or email other than the
`
`Notice in the form shown in Attachment B, or in such form approved in writing by
`
`the Commission or its designee, including any billing statements or marketing
`
`messages.
`
`4.
`
`In States in which Defendants and/or Defendants’ subsidiaries or
`
`affiliates have entered a settlement with a state regulator concerning Advertised
`
`Speeds prior to the effective date of this Order, Defendants may, in place of the
`
`Notice in the form shown in Attachment B, or in such form approved in writing by
`
`the Commission or its designee, use the form of notice agreed to with such State to
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`

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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 17 of 43 Page ID #:1146
`
`provide the consumer disclosures described in Section IV.A.1 of this Order, and
`
`the options to discontinue, change, or continue Internet Service Plans described in
`
`Section IV.A.2. In other States, Defendants shall use the Notice in the form
`
`shown in Attachment B, or in such form approved in writing by the Commission
`
`or its designee.
`
`B.
`
`Defendants shall, for Existing Customers for whom the Provisioned Speed
`
`cannot be readily ascertained based on limitations in Frontier’s facilities or system
`
`capabilities in the Existing Customer’s area, issue a notice in the form shown in
`
`Attachment C, or in such form approved in writing by the Commission or its designee,
`
`via any method Defendants use to communicate with the Existing Customer (including
`
`but not limited to mail, e-mail, or text message, which may contain a hyperlink).
`
`Defendants’ Notice described in this Section shall:
`
`1.
`
`Clearly and Conspicuously inform the Existing Customer of the
`
`maximum Advertised Speed for the Internet Service Plan to which the Existing
`
`Customer is subscribed; the fact that the Provisioned Speed cannot be readily
`
`ascertained based on limitations in Frontier’s facilities or system capabilities; the
`
`range of Internet service speeds Defendants have reason to believe the Existing
`
`Customer is likely to receive based on the geographic location of the Existing
`
`Customer’s residential address; and how such speeds may impact the Existing
`
`Customer’s access to various Internet services, such as streaming or gaming;
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`

`

`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 18 of 43 Page ID #:1147
`
`2.
`
`Offer the Existing Customer the options to (i) continue with the
`
`current Internet Service Plan; (ii) discontinue the current Internet Service Plan
`
`without incurring any additional fee associated with an Internet Service Plan, such
`
`as an early termination fee, for cancelling the Internet Service Plan; and (iii) move
`
`to another Internet Service Plan product tier in which the Customer can be
`
`Provisioned at a minimum of 90% of the maximum Advertised Speed, in the form
`
`shown in Attachment C, or in such form approved in writing by the Commission
`
`or its designee; and
`
`3.
`
`Not include anything in or with the Notice or email other than the
`
`Notice in the form shown in Attachment C, or in such form approved in writing by
`
`the Commission or its designee, including any billing statements or marketing
`
`messages.
`
`V.
`
`REQUIRED ACTIONS REGARDING CERTAIN
`NEW AND EXISTING CUSTOMERS
`
`IT IS FURTHER ORDERED that, within 90 days after the entry of this Order, or by
`
`October 31, 2022, whichever is later:
`
`A.
`
`Defendants shall, for Customers served by DSLAMs for which Congestion
`
`Reports indicate an average peak utilization of 90% or greater in any consecutive 3-
`
`month period, issue a notice via any method Defendants use to communicate with the
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`

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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 19 of 43 Page ID #:1148
`
`Customer (including but not limited to mail, e-mail, or text message, which may contain
`
`a hyperlink) to those Customers within 60 days of the end of the 3-month period,
`
`informing them of: (1) the speed at which they are provisioned; (2) the range of Internet
`
`service speeds they are likely to achieve; and (3) that the limitations of those speeds may
`
`impact various Internet services, such as streaming or gaming.
`
` B. Defendants shall, when a New or Existing Customer subscribed to an
`
`Internet Service Plan with an Advertised Speed contacts Defendants with an inquiry or
`
`complaint that the Customer’s Internet speed experienced is slower than the Advertised
`
`Speed and the Customer requests or it is otherwise clear from the communication that
`
`Defendants should investigate or take action to address service speed, respond to the
`
`Customer by, at Defendants’ option: (a) initiating a review to respond to the Customer’s
`
`complaint, such as through a Speed Assessment Procedure comparable to the one set
`
`forth in Exhibit B, and if the review reveals that the Customer is unable to receive at
`
`least 90% of the maximum Advertised Speed or higher, Defendants shall issue a notice
`
`in the form shown in Attachment D, or in such form approved in writing by the
`
`Commission or its designee; or (b) issuing a notice in the form shown in Attachment D,
`
`or in such form approved in writing by the Commission or its designee. Defendants
`
`shall issue the notice via any method Defendants use to communicate with the New or
`
`Existing Customer (including but not limited to mail, e-mail, or text message, which may
`
`contain a hyperlink). Defendants’ Notice described in this Section shall:
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`

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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 20 of 43 Page ID #:1149
`
`1.
`
`Offer the Customer the options to (i) continue with the current
`
`Internet Service Plan; (ii) discontinue the current Internet Service Plan without
`
`incurring any additional fee associated with an Internet Service Plan, such as an
`
`early termination fee; and (iii) move to another Internet Service Plan product tier
`
`in which the Customer can be Provisioned at a minimum of 90% of the maximum
`
`Advertised Speed; and
`
`2.
`
`Not include anything in or with the Notice or email other than the
`
`Notice in the form shown in Attachment D, or in such form approved in writing by
`
`the Commission or its designee, including any billing statements or marketing
`
`messages.
`
`VI.
`
` MONETARY JUDGMENT AND CALIFORNIA SPECIFIC INJUNCTIVE
`
`TERMS
`
`[By and Between Defendants and Plaintiff California Only]
`
`IT IS FURTHER ORDERED that:
`
`A.
`
`Defendants are ordered to pay eight million five hundred seventy-three
`
`thousand five hundred seventy dollars ($8,573,570) to the PEOPLE for investigation and
`
`litigation costs as well as pursuant to California Business and Professions Code Sections
`
`17206 and 17536. This amount is ordered to be paid within 30 days of the date of entry
`
`of this Stipulated Order. The Riverside County District Attorneys’ Office shall be solely
`
`responsible for dividing and distributing this amount between and among the PEOPLE
`
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`

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`Case 2:21-cv-04155-RGK-MAA Document 97 Filed 05/05/22 Page 21 of 43 Page ID #:1150
`
`according to agreements between them. Defendants shall have no responsibility or
`
`liability arising from or relating to any (a) failure to allocate, divide or distribute these
`
`amounts, or (b) any dispute about the allocation, division or distribution of these
`
`amounts.
`
`B.
`
`Defendants are also ordered to pay an additional two hundred and fifty
`
`thousand dollars ($250,000) to the PEOPLE within 30 days of the date of the entry of
`
`this Stipulated Order. These

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