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March 30, 1997
R.I. man is suing AOL
over busy signals
By Timothy C. Barmann
Larry Groff is like many America Online subscribers in Rhode Island who have had trouble getting on line since AOL changed its pricing structure in December.
But unlike many of his fellow users, he did more than just grumble about it. He's taking AOL to court.
Groff, 58, a resident of Scituate, filed a class-action suit in state Superior Court against the on-line giant in January. Groff is seeking damages not only for himself, but for all AOL subscribers in Rhode Island.
He's not sure exactly how many there are -- and AOL won't say -- but by his estimates, the number is more than two thousand. That's probably a good guess, since AOL claims to have about 7.5 million users across the United States.
The suit alleges that AOL oversold its services and didn't have the capability to handle the onslaught of new customers drawn by its new $19.95 unlimited access plan.
"They advertised this knowing that they weren't prepared," Groff said in a telephone interview.
The Groff suit is one of about 18 class-action suits that have been initiated nationwide, according to Dennis J. Roberts II, the Providence lawyer (and former Rhode Island attorney general) whom Virginia-based AOL hired to represent it locally.
AOL doesn't deny it has had serious problems with busy signals since that plan began. It reached an agreement with dozens of state attorneys general on Feb. 4 that calls for refunds of up to $40, or a credit for one month of service for customers who had difficulty connecting during December and January.
But that agreement doesn't preclude any legal claims from being brought against AOL, said Groff, who is a lawyer himself. And many subscribers who are still having trouble getting on line are not eligible for any credits or refunds for February, Marc h or beyond.
AOL spokeswoman Tricia Primrose, when asked about the merits of the pending class-action suits, referred to the agreement with the attorneys general.
"Our belief is that agreement is fair and reasonable and addresses many of the issues raised in those class-action suits," she said.
She acknowledged, though, that a subscriber who signs up now and has trouble getting on line isn't eligible to get any refund.
AOL is working quickly to increase its capacity, Primrose said, and has added another 50,000 modems in January and February. The company has more than 250,000 modems on line as of March 1, she said. There are also about 80,000 other modems available through a leasing arrangement AOL has made with Sprint and AOL, she said.Locked out and charged
Groff said he sued because he was frustrated about being locked out of AOL, while the company continued to charge his credit card for service.
He had just gotten his first computer last November. He said he knew nothing about the Internet or on-line services and decided to sign on with America Online when a friend told him $19.95 was a good price for unlimited access.
"All of sudden, I guess everybody in the world did the same thing," he said.
When he tried to get on line, "all you get is busy, busy, busy," he said. "Sometimes you get so frustrated, you say to heck with it."
Groff saw a newspaper article about a class-action suit being filed against AOL, and that got him talking to George M. Prescott, a lawyer who works in the same building in Lincoln as Groff. Prescott ended up filing the suit on Groff's behalf.
Groff sued under the state's "Unfair Trade Practice and Consumer Protection Act," which calls for damages of $200 to be paid to each member of the group affected by the problem.
Right now, Prescott is working to "certify" the suit, which means he has to demonstrate that a sufficient number of AOL subscribers in Rhode Island have claims similar to Groff's.
There's no concrete number for what "sufficient" is, Prescott said, but federal rules say a class can be certified with as few as 15 or 20 people.
So far, several hundred people have responded to advertisements Prescott has placed in area newspapers seeking AOL subscribers who want to be a party in the suit.
But you don't have to be a party to collect any potential award or settlement that arises from this case, Prescott said. Anyone who is an AOL subscriber in Rhode Island will automatically share in any payout.
Groff said he's been fascinated with what he's been able to see of the Internet so far. He's used it to do some research for his law practice, and to correspond via e-mail with a 93-year-old uncle who was wired before he was.
But his experience with America Online has tempered his enthusiasm somewhat. He feels he and the other subscribers have had the wool pulled over their eyes, as AOL automatically charges their credit cards for service it hasn't provided.
"To take that and take it from hundreds of thousands of people and put it in your pocket and don't deliver on it, it's not right."
Larry Groff's e-mail address is LGroff1108@aol.com. To reach his attorney, write to George M. Prescott, 300 Front St., Lincoln, RI 02865; or phone 401-726-5577.
Justices aren't blind
If you've been following the Communications Decency Act as it winds its way through the courts, you'll want to read the fascinating transcripts from the oral arguments held at the Supreme Court earlier this month.
They are available at the American Civil Liberties Union Web site at http://www.aclu.org.
An article in USA Today suggested that the stodgy justices of the high court are completely unversed when it comes to the Net and would require lots of guidance from their more-hip legal researchers. But one of the first comments made by one of the j ustices was a reference to "CGI scripts." It's a technical term that describes the behind-the-scenes programming necessary to make Web sites interactive.
The comment suggests that the justices may be a little more hip than we were led to believe.
Timothy C. Barmann is a Journal-Bulletin staff writer. His column runs every other Sunday on the On Line page. Send him comments via e-mail at firstname.lastname@example.org or U.S. mail, c/o the Journal-Bulletin, 75 Fountain St., Providence, R.I. 02902.
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