Washington expands $100 million lawsuit against Comcast over alleged deceptive practices

SEATTLE -- The state of Washington is expanding its pending lawsuit against Comcast, now slamming the cable and internet giant for discarding recorded customer service calls that the attorney general claims is evidence of the company's alleged deceptive sales practices.

Washington State Attorney General Bob Ferguson said Thursday that his team uncovered more illegal conduct by Comcast as the investigation developed, particularly as the state sought recorded customer service calls.

Philadelphia-based Comcast said it strongly disagrees with Ferguson's new claims and that his assertions are based on flawed methodology and assumptions. The company said it will continue to vigorously defend itself in court.

"The Service Protection Plan gives those consumers who choose to purchase it great value by covering virtually all service charges over 99% of the time," Marianne Bichsel, vice president of external affairs for Comcast's Washington Region, said in a statement.

The initial lawsuit filed in 2016 claimed the company profited from the misleading service protection plan and that Comcast committed more than 1.8 million violations of the state's Consumer Protection Act by charging improper service call fees and using improper credit screening practices.

The state says Comcast initially refused their request for the recorded customer service calls as too burdensome, which launched a court fight. The company eventually turned over a limited sample of those calls but had already deleted tens of thousands of recordings as a matter of routine and wasn't under any obligation to preserve them. Ferguson claims now that the company knowingly destroyed the evidence because the investigation was already pending, though Comcast called that a mischaracterization of the company's standard handling of agent call records.

The state said it has analyzed 150 calls so far from the thousands that it will review that were made between Washington customers and Comcast customer service representatives. The state said it found cases where the company charged customers for a service protection plan even if they refused it outright, or would mislead them about the cost. Half of the time, the Comcast employee didn't even discuss the plan but would charge the customer for it anyway, Ferguson said.

"We've now uncovered evidence that many Washingtonians are paying for it without their consent," Ferguson said.

The state said more than 500,000 people in Washington have paid for the plan, totaling $73 million between 2011 and 2015. It costs $5.99 a month, which is touted as a way to avoid being charged if a technician visits their home to fix an issue covered by the plan.

Ferguson is seeking full restitution for any customer who unknowingly paid for it or feels deceived about the cost or nature of the service. The state is also asking for "significant" civil penalties against Comcast.

Ferguson's office released the following information about the expanded lawsuit on Thursday:

Sample of customer calls reveals massive deception

In May 2017, King County Superior Court Judge Timothy Bradshaw ordered Comcast to provide the Attorney General’s Office with “telephone calls that exist in which sold the SPP to Washington consumers.” In response to the court order, Comcast turned over to the Attorney General’s Office recordings of calls between Comcast and 1,500 Washington consumers whom Comcast signed up for the SPP.

The Attorney General’s Office analyzed a random sample of recorded sales calls between Comcast and 150 Washingtonians. Comcast did not even mention the SPP to nearly half the sample. Additional consumers in the sample explicitly rejected the SPP, but Comcast signed them up anyway. Consequently, Comcast enrolled more than half of these subscribers without their consent.

Even when Comcast actually mentioned the SPP on the sales call before signing consumers up for the SPP, Comcast continued to engage in deception. Comcast deceptively failed to disclose the SPP was a monthly recurring charge to 20 percent of the Washingtonians in the sample. Rather, Comcast often told subscribers the SPP was added for “free” to their account.

According to Comcast’s own data, more than 75% of SPP subscribers sign up via the telephone. Comcast operates call centers in Washington state, Colorado, Minnesota and Texas, as well as throughout the world in the Philippines, Mexico and Guyana. Comcast paid call center staff up to $5 for every SPP sale they made.

Comcast does not instruct its employees to send customers any information about the SPP via email, text message, mail, or refer the customer to Comcast’s website while the call is occurring and the customer is considering whether to enroll in the SPP. Rather, Comcast only provides oral representations about the SPP.

The Attorney General’s Office alleges this pattern of deception is a systemic issue throughout Comcast’s marketing and “sale” of the SPP, and represents potentially tens of thousands of new violations of the Washington state Consumer Protection Act.

Deleted call recordings impede investigation

Comcast’s refusal to produce call recordings has been an ongoing issue.

In June 2015 the Attorney General’s Office sent Comcast a Civil Investigative Demand that required Comcast to preserve these call recordings between Comcast representatives and Washingtonians who purchased the SPP.

After filing the lawsuit in August 2016, the Attorney General’s Office renewed its request for these call recordings. Comcast refused to provide them, arguing that to do so would be burdensome. Consequently, the Attorney General’s Office asked the court to compel Comcast to produce a sample of these call recordings.

Still Comcast refused to produce the recordings. Comcast responded to the Attorney General’s motion to compel production of call recordings by again arguing it would be burdensome to review and provide them. In a brief to the court, Comcast estimated it would take “approximate 8,500 reviewer hours” to produce these calls.

Only after Judge Bradshaw ordered Comcast to comply in May 2017 did Comcast admit it had already deleted 90% of the calls the Attorney General’s Office had been requesting as part of its investigation. Comcast deleted tens of thousands of calls some time after the Attorney General’s Office demanded Comcast preserve the recordings and before telling the court it would take more than 8,000 hours to produce them.

The Attorney General’s Office filed a motion asking Judge Bradshaw to levy sanctions against Comcast for discarding potential evidence while under investigation.

In August 2017, Judge Bradshaw awarded the state approximately $13,000 in attorney fees and costs incurred in connection with the motion for sanctions. Judge Bradshaw reserved ruling on whether to impose further sanctions.

Despite Comcast’s deletion of recordings, through Judge Bradshaw’s court order, the Attorney General’s Office obtained the sample of call recordings that reveals additional unfair and deceptive practices.

New evidence substantially expands original $100 million-plus lawsuit substantially

Ferguson’s original 2016 lawsuit asserts Comcast violated the CPA to all of its nearly 1.2 million subscribers in Washington state. The lawsuit is the first of its kind in the nation — though the SPP is a nationwide program.

When filing his lawsuit, Ferguson announced he is seeking full restitution for the $73 million paid by SPP subscribers in Washington state. He announced he is also seeking penalties for violations of the CPA for a total of more and $100 million to hold Comcast accountable. The CPA allows a penalty of up to $2,000 per violation.

With this new evidence of these significant additional violations, Ferguson is seeking substantially more.

Shortly before Ferguson filed his lawsuit, Comcast increased the monthly price of the SPP from $4.99 to $5.99. The cost of the SPP has tripled since 2011.

Senior Assistant Attorney General Jeffrey Rupert and Assistant Attorneys General Daniel Davies and Seann Colgan are handling the case for Washington.

If Washington consumers believe Comcast added the SPP to their account without their consent, they should file a complaint with the Attorney General’s Office by going to www.atg.wa.gov and clicking on the “file a complaint” button on the homepage.