Comcast's 'Free' Streaming Box Is Actually $13 After Stupid Fees

from the ill-communication dept

Back in March, Comcast heavily hyped the looming launch of a new streaming TV box that a press release proclaimed would provide "real value" to Comcast broadband customers for free. It was Comcast's attempt at trying to fend off the growing array of $7-$14 per month streaming services that have been popping up and causing Comcast customers to cut the cable TV cord. Comcast noted at the time the offering would only be made available to the company's existing broadband subscribers, and would only feature streaming services sanctioned by Comcast:

"For just five dollars a month, we can offer these customers an affordable, flexible, and differentiated platform that includes thousands of free movies and shows for online streaming, an integrated guide for accessing their favorite apps and connected home devices, and the ease of navigating and managing all of it with our voice remote."

Of course this being Comcast, the word "free" turns out to have been...generous. Unmentioned by the original announcement was the fact that to actually partake in this new streaming service, you must rent Comcast's "XFi Gateway," which will run you an additional $13 per month on top of your broadband bill. Comcast has long tried to convince its customers they must pay a rental fee for a router or modem, despite the fact that users can buy their own router and avoid that fee. Of course that's not possible if you want to experience the "real value" Comcast's new Flex streaming service purportedly provides:

"The $13-per-month rental fee for the xFi Gateway is a complete rip-off that Comcast (like other internet providers) pushes on its subscribers because people generally don’t know there’s an alternative. Instead of paying Comcast an additional $13 per month in perpetuity, you can instead buy a modem and router outright. By doing so, you’ll likely make up the upfront costs after a year, maybe two if you go for higher-end options. Once it’s paid off, you’ll be saving the $156 per year that you’re paying just to have a box sit in your house."

As such, Comcast's claim that this new service was available "at no additional cost as part of an Xfinity Internet-only subscription" would constitute false advertising. And Comcast's free streaming box is actually a $13 rented box that's not only loaded with a major hidden fee -- it doesn't include streaming services Comcast isn't keen on competing with. Most consumers would just be smart enough to buy a Roku or some other streaming device and enjoy a wide range of services, but Comcast hopes that enough of its customers don't know any better and will sign up anyway.

This would all be slightly less obnoxious if Comcast hadn't spent much of 2016 using outright propaganda to thwart an FCC quest to crack open the cable industry's monopoly over cable boxes and other hardware. Under the plan, cable providers would have needed to provide their programming to third party hardware vendors without the need for a CableCARD, making it easier to pay for Comcast services using your Roku, Apple TV, or third party cable box. But because the cable industry makes around $21 billion annually in rental fees, it engaged in some incredibly misleading tactics and claims to scuttle the effort.

Given the company just convinced the FCC to effectively neuter itself at lobbyist behest, there's no longer any meaningful rules in place governing misleading fees, something Comcast has lots of experience with. As such consumers' only real recourse is to avoid services and behaviors like this wherever possible, a major reason the company lost another 238,000 TV subscribers last quarter alone. But there's another problem: Comcast's broadband monopoly and its use of usage caps to hamstring and punish those that flee Comcast's fee-laden walled garden.

Filed Under: bogus fees, fees, flex, routers, streaming, truth in advertising, xfi gateway
Companies: comcast

Hidden Fees Mean US Cable & Broadband Bills Can Be 45% Higher Than Advertised

from the ill-communication dept

For years we've talked about how the broadband and cable industry has perfected the use of utterly bogus fees to jack up subscriber bills, a dash of financial creativity it adopted from the banking and airline industries. Countless cable and broadband companies tack on a myriad of completely bogus fees below the line, letting them advertise one rate -- then sock you with a higher rate once your bill actually arrives. These companies will then brag repeatedly about how they haven't raised rates yet this year, when that's almost never actually the case.

Despite this gamesmanship occurring for the better part of two decades, nobody ever seems particularly interested in doing much about it. The government tends to see this as little more than creative marketing, and when efforts to rein in this bad behavior (which is really false advertising) do pop up, they tend to go nowhere, given this industry's immense lobbying power. And given the US broadband sector remains painfully uncompetitive in most markets, actually voting with your wallet is often impossible.

How bad is the problem, really? A new study by GlobalData found that what you'll actually pay to your cable TV or broadband provider can often be upwards of 45 percent higher than the advertised price:

"In some cases, the final cost is as much as 45% over the advertised rate. For example, Xfinity’s $40 ‘Starter Internet plus Basic’ TV bundle jumps to $58 per month once the additional $18 in equipment costs are added. Prices can also vary based on location.”

According to GlobalData’s research, Verizon had the highest additional costs in August at $24 per month, followed closely by Frontier and Optimum with around $17-$18 in additional equipment fees. AT&T and Google Fiber offered the most cost transparency in bundle price with zero additional equipment or technology fees.

AT&T is let off the hook here and they shouldn't be. This is a company that recently tried to charge its broadband customers upwards of $500 more a year if they simply wanted to opt out of snoopvertising and online data tracking. The broadcast and cable fee problem isn't a subtle one. Companies like CenturyLink have gotten so cocky they've charged their broadband users a "internet cost recovery fee," which it claims helps the ISP "defray costs associated with building and maintaining CenturyLink's High-Speed Internet broadband network." Except that is, in case you didn't know, what the rest of your damn bill is for.

Of course it's a problem that's everywhere, and not just in the telecom sector. Hotels routinely still charge users obnoxious "resort fees" (legislation to hamper those efforts exists but faces an uphill climb against lobbyists), and airlines and banks have of course perfected the nuisance as well. But both parties appear to have embraced the practice as a form of capitalistic creativity, despite the fact that when you strip away the bullshit justifications, it's little more than false advertising. And, apparently, most US regulators and lawmakers are cool with that.

Filed Under: broadband, cable, fees, hidden fees, truth in advertising
Companies: at&t, centurylink, comcast, frontier, verizon

AT&T Settles Lawsuit Over 'Fake 5G,' Won't Change A Thing

from the ill-communication dept

Big wireless carriers haven't been exactly honest when it comes to the looming fifth-generation wireless standard (5G). Eager to use the improvements to charge higher rates and sell new gear, carriers and network vendors are dramatically over-hyping where the service is actually available, and what it can actually do. Some, like AT&T, have gone so far as to actively mislead customers by pretending that its existing 4G networks are actually 5G. AT&T took this to the next level recently by issuing phone updates that change the 4G icon to "5GE" on customer phones, despite the fact that actual 5G isn't really available.

This isn't just confusing consumers. Even Salesforce CEO Marc Benioff was misled this week by AT&T's gambit:

When AT&T has been called out for the misleading practice, it has only doubled down, with executives like AT&T Communications CEO John Donovan going so far as to say they were pleased by the consternation the head fake was causing:

"Every company is guilty of building a narrative of how you want the world to work, and I love the fact that we broke our industry's narrative two days ago, and so they're frustrated and they're going to do what they do," Donovan said.

"I think the result of last month, beating the industry out [with the 5G hotspot], and this 5G E launch a couple of days ago, our competitors are frustrated," Donovan said. "if I have now occupied beachfront real estate in my competitors' heads, that makes me smile."

So far, consumers aren't really smiling. Not only is AT&T's 4G network being dressed up as 5G, its actual 5G is nothing to write home about. Critics have rightly noted that AT&T's actual 5G footprint is negligible at best, device support is largely nonexistent, and the costs are nothing to cheer about. By and large these early deployments are little more than highly-limited marketing demos, and even then they're not doing a very good job selling 5G as a meaningful connectivity revolution. At least not one worth the additional costs consumers are expected to pay.

Unsurprisingly, the FCC hasn't much cared that AT&T's misleading its customers by pretending 4G is 5G. Sprint, however, sued AT&T back in February, stating that by falsely claiming it was offering 5G, the company was using false advertising to leech away the company's customers.

This week, that lawsuit was quietly settled without the companies involved providing any details whatsoever:

"AT&T and Sprint have settled a lawsuit over AT&T’s “5G Evolution” branding, which Sprint claimed was fooling customers into believing its 4G LTE network was a full-fledged 5G network. “We have amicably settled this matter,” an AT&T spokesperson told the Dallas Business Journal — which cited anonymous sources saying that AT&T would keep using “5G E” in its marketing material. AT&T and Sprint also confirmed its statement to The Verge."

In other words AT&T either paid Sprint to shut them up, or Sprint just backed down for some unforeseen reason. Either way, insiders state that nothing will actually change at AT&T, and the company intends to continue pretending that its modestly-upgraded 4G network is actually 5G. Combined with a lot of the other availability misrepresentation these carriers are engaged in, they're inadvertently teaching customers to associate 5G with empty promises and hype. Not a particularly solid ethical or marketing start for a technology these carriers proclaim will revolutionize the planet as part of the "fourth industrial revolution."

Filed Under: 4g, 5g, fcc, truth in advertising
Companies: at&t, sprint

UK ISPs Demand Ad Watchdog Crack Down On 'Fake Fiber' Broadband

from the ill-communication dept

A few years back, we noted how a growing number of US broadband providers (particularly telcos) were trying to obscure their network upgrade failures. How? By only partially upgrading their networks then over-stating their customers actual access to real fiber broadband. AT&T, for example, likes to upgrade only a few developments in a city then breathlessly declare the entire city served with fiber. AT&T and other telcos often only upgrade part of the path to the users' home (fiber to the local node, aka FTTN) instead of running fiber to the home.

It's well in line with the problem we've seen in both the UK and US with ISP's advertising "up to" broadband speeds (usually an indicator you won't get the actual speed advertised. Needless to say, this collectively creates a lot of confusion among customers who often don't know if fiber is actually available, or if they're being sold either empty promises, or some inferior version of marginally upgraded DSL that isn't fiber (usually made most obvious by pathetic upstream speeds).

In the United States regulators couldn't care less about this. Both parties have long turned a blind eye to such creative marketing, in much the same way we've turned a blind eye to the fact our terrible broadband maps routinely over-state broadband availability over all. Apathy to this kind of creative marketing is also common in the UK, where the Advertising Standards Authority recently declared it was no big deal if a broadband provider wants to sell inferior broadband service (with speeds much slower than real fiber) as "fiber" broadband.

Three of the UK's actual fiber providers have joined forces in a bid to try and force the ASA to retreat from the decision:

Three of the UK’s most pioneering providers’ of ultrafast “full fibre” (FTTP/H) broadband – Gigaclear, Cityfibre and Hyperoptic – have today called on the Advertising Standards Authority to stop rivals from using the term “fibre” to advertise services delivered over slower copper wires...“Consumers are increasingly being provided with a choice; to rely on traditional broadband services delivered over outdated copper wires and cables, or to connect to a new generation of full fibre networks offering the vastly improved speeds and reliability essential to a modern-day home or business."

This seems like semantics, but when you're trying to upgrade a country to actual broadband... it matters. DSL lines remain highly distance constrained, and (again) tend to offer paltry upstream speeds. So when you're trying to determine whether a city has been upgraded to real broadband -- or substandard broadband -- it's kind of an important difference. Granted ISPs in both the UK and US that don't want to meaningfully upgrade their networks (or let anybody else do so either) would prefer it if they could continue calling a Honda Civic a Bugatti for what should be obvious reasons.

It should be noted that the FCC's 2015 net neutrality rules had some transparency requirements insisting that ISPs be entirely clear about what kind of connection they're buying. Requirements that, with the rest of the rules, were stripped away by the FCC's Ajit Pai in his quest for "internet freedom" (or whatever he's calling it these days).

Filed Under: faster broadband, fiber, truth in advertising, uk

New Bill Tries To Ban Obnoxious Hidden Fees On Broadband, TV

from the ill-communication dept

For years we've talked about how the broadband and cable industry has perfected the use of utterly bogus fees to jack up subscriber bills, a dash of financial creativity it adopted from the banking and airline industries. Countless cable and broadband companies tack on a myriad of completely bogus fees below the line, letting them advertise one rate -- then sock you with a higher rate once your bill actually arrives. These companies will then brag repeatedly about how they haven't raised rates yet this year, when that's almost never actually the case.

Despite this gamesmanship occurring for the better part of two decades, nobody ever seems particularly interested in doing much about it. The government tends to see this as little more than creative financing, and when efforts to rein in this bad behavior (which is really false advertising) do pop up, they tend to go nowhere, given this industry's immense lobbying power.

The latest case in point: US Rep. Anna Eshoo last week quietly introduced a bill that would require broadband and cable TV providers to include all charges in their advertised price. Eshoo explains the proposal as such in her announcement:

"Customers deserve to know exactly what they’re paying for when it comes to monthly cable and Internet service bills. Today, they’re sold a service for one price, only to be blindsided by higher bills at the end of the month from tacked on ‘service’ or ‘administrative’ fees,” Rep. Eshoo said. “These ‘below-the-line’ fees add up to hundreds of millions of dollars each year for cable and Internet service providers at the expense of consumers who have little to no option than to pay up. The TRUE Fees Act is commonsense legislation that brings transparency to consumers and empowers them when it comes to phone, cable and Internet fees."

Of course this bill is never going to pass this current Congressional body, which tends to go out of its way to protect these companies from anything even vaguely resembling accountability. The industry is likely to pull out all the stops, given the billions that are made annually from such bogus fees, and because the bill also prohibits forced arbitration clauses when cable TV or broadband providers make billing mistakes.

Again, this problem is rampant. CenturyLink has been charging its broadband customers an "internet cost recovery fee," which the company's website insists "helps defray costs associated with building and maintaining CenturyLink's High-Speed Internet broadband network" (that's what your full bill is supposed to be for). Comcast and other cable companies have similarly begun charging users a "broadcast TV fee," which simply takes a portion of the costs of programming, and hides it below the line. The names differ but the goal's the same: falsely advertise one rate, then charge consumers a higher price.

And again, efforts to do something about it always get killed thanks to industry lobbying and corruption. The FCC tried to at least mandate transparency as part of its now-dead 2015 net neutrality rules, which current FCC boss Ajit Pai dismantled for, you know, freedom or whatever. Of course you wouldn't need legislation like this if there were more competition in the telecom sector letting consumers vote with their wallets, but given Pai and other industry BFFs don't want to fix that specific problem either, being quietly, covertly ripped off will remain the law of the land for the foreseeable future.

Filed Under: anna eshoo, broadband, cable, hidden fees, pricing, truth in advertising, tv

Complaint Filed Over Sketchy VPN Service

from the deceptive-trade-practices dept

VPNs are important... for some situations. Unfortunately, the message that many have received in hearing about the importance of VPNs is that they somehow "protect your privacy." But that's always been wrong. They just move the privacy questions somewhere else. And sometimes it's a sketchy place. A few months back we discussed this very issue with some security experts on our podcast. All VPNs do is create a secure tunnel from where you are to somewhere else. That's useful if you don't want other people sitting in the Starbucks with you to pick up your unencrypted traffic (or other people in your hotel on the hotel WiFi), but it doesn't solve anything on larger privacy questions. The always excellent SwitfOnSecurity summed it up nicely recently:

Basically, you're just moving the risk elsewhere, and you're trusting whoever your VPN provider is -- and they may very well be worse than whatever it is you're trying to avoid. The specific use case that's almost never recommended is using a VPN on your home network (with a few specific exceptions). You may not trust Comcast/AT&T/whatever, but they may actually be a lot more serious about protecting you than a fly-by-night VPN provider.

But with so many VPN providers out there, it's not always clear how legit they are, and there certainly have been rumors and complaints about some of them. Now, the Center for Democracy and Technology (CDT) has filed an FTC complaint against one of the more well known VPN providers, Hotspot Shield VPN. You can read the short complaint yourself, but the short version is CDT says that Hotspot Shield VPN makes claims about privacy that are... not accurate, and argues that these are deceptive trade practices.

Hotspot Shield makes strong claims about the privacy and security of its data collection and sharing practices. CEO David Gorodyansky has stated that “we never log or store user data.” The company’s website promises “Anonymous Browsing” and notes that Hotspot Shield keeps “no logs of your online activity or personal information.” Hotspot Shield further differentiates itself from “...disreputable providers [that] are able to offer free VPN services [ ] because they make their money tracking and selling their users’ activities” by claiming that “Hotspot Shield neither tracks nor sells customers’ information.”

Take a wild guess what's coming next...

While connection logs can be designed to be minimally privacy-invasive, Hotspot Shield engages in logging practices around user connection data, beyond troubleshooting technical issues. The service uses this information to “identify [a user’s] general location, improve the Service, or optimize advertisements displayed through the Service.” IP addresses, unique device identifiers, and other “application information” are regularly collected by Hotspot Shield.

And then this:

While insisting that it does not make money from selling customer data, Hotspot Shield promises to connect advertisers to unique users that are frequent visitors of travel, retail, business, and finance websites. Moreover, these entities have access to IP addresses and device identifiers collected via Hotspot Shield. Even if Hotspot Shield only provides “hashed” or “proxy” IP addresses to these partners, third parties can also link information about web-viewing habits while using the Hotspot Shield by cross-referencing cookies, identifiers, or other information.

And more:

Contrary to Hotspot Shield’s claims, the VPN has been found to be actively injecting JavaScript codes using iframes for advertising and tracking purposes. An iframe, or “inline frame,” is an HTML tag that can be used to embed content from another site or service onto a webpage; iframes are frequently used to insert advertising, but can also be used to inject other malicious or unwanted code onto a webpage.

Further analysis of Hotspot Shield’s reverse-engineered source code revealed that the VPN uses more than five different third-party tracking libraries, contradicting statements that Hotspot Shield ensures anonymous and private web browsing.

But, wait, there's more...

Additional research has revealed that Hotspot Shield further redirects e-commerce traffic to partnering domains. For example, when a user connects through the VPN to access specific commercial web domains, including major online retailers like and , the application can intercept and redirect HTTP requests to partner websites that include online advertising companies.

And just one more thing...

Consumers have reported instances of credit card fraud after purchasing the “Elite” paid-version of Hotspot Shield VPN. One consumer reported “thousands of dollars” in credit card charges, as well as other suspicious online activity.

There's even more in the complaint, but those are some highlights. CDT claims that these are deceptive trade practices. Of course, the FTC doesn't need to do anything here. Such a complaint is basically asking the FTC to investigate and do something, and the FTC doesn't always do so. But at the very least, it may wake some people up about being careful which VPNs they use.

Filed Under: ftc, privacy, truth in advertising, vpn
Companies: cdt, hotspot shield vpn

Comcast Tries, Fails To Kill Lawsuit Over Its Hidden, Bogus Fees

from the I-see-what-you-did-there dept

Cable TV and broadband providers have created an art form out of advertising one price, then charging you something else entirely when your bill actually arrives. They accomplish this via the addition of sneaky below the line fees, which allow them to covertly raise rates while proudly crowing that they've keep their base rates the same. Some of these fess are downright obnoxious in how fraudulent they are, like CenturyLink's "internet cost recovery fee." Others, like the increasingly common "broadcast TV fee," simply take a part of the cost of doing business (in this case programming), then bury it below the line to jack up the advertised price.

Comcast, an expert at this particular behavior, was sued for the practice late last year. The lawsuit specifically focused on Comcast's use of the broadcast TV fee, which has quickly ballooned for Comcast customers from $1.50 per month to $6.50 since introduction, and the "Regional Sports Fee" that has quickly jumped from $1 to $4.50 since 2015. The lawsuit was also was quick to point out that when people call Comcast to complain, the company's support reps often lie and insist that the fees are somehow government mandated to dodge accountability.

Amusingly, the company responded to the suit by trying to claim that covertly jacking up their advertised rate was just their way of being "transparent" (nothing quite says "transparency" like not knowing what your bill is going to be until after you've signed up for service). Comcast subsequently filed a motion to dismiss, arguing that the company's order submission process doesn't technically create a binding contract with its customers, and that customers agreed to pay the fees by agreeing to the Comcast "Subscriber Agreement" and "Minimum Term Agreement."

But US District Court Judge Vince Chhabria recently shot down this argument in a ruling that will keep the suit alive, for now:

"The motion to dismiss the breach of contract claim is denied. The plaintiffs have alleged the existence of a valid contract, which was created when [Comcast customers Dan] Adkins and [Christopher] Robertson submitted their order for Comcast services through Comcast's website. It is plausible to infer from the complaint that, by clicking "Submit Your Order," Adkins and Robertson agreed to pay Comcast's advertised price, plus taxes and government-related fees, in exchange for the services Comcast offered them. It is also plausible to infer from the complaint that Comcast breached its agreements with the plaintiffs when it sent them bills charging them Broadcast TV and/or Regional Sports Fees (alleged to be neither taxes nor government-related fees) in excess of the agreed-upon price, and when it subsequently sought to raise the amount of the fees."

Judge Chhabria also disputed Comcast's claim that users technically agree to pay these fees by agreeing to the Comcast subscriber agreement, which only references "permitted fees and cost recovery charges," and not these additional surcharges Comcast appears to have hallucinated out of whole cloth:

"As to the Minimum Term Agreement, the plaintiffs plausibly allege that they never saw this agreement at the time they submitted their order for services and have never consented to it," the judge wrote. "Whether the plaintiffs had access to this agreement at the time they submitted their orders for services, or whether they subsequently consented to it, are disputed factual questions more appropriate for summary judgment."

Comcast's being additionally disingenuous here in part because as the owner of NBC, it very often is the broadcaster, and often owns the regional sports networks in question. Granted Comcast's use of covert fees to covertly jack up the cost of service is something that has plagued the broadband and TV sectors in particular for years, though regulators and lawmakers have consistently turned a blind eye to the practice. Similar suits have been filed against Charter Communications, at which point the nation's other extremely-disliked cable provider tried to claim it was simply providing an amazing consumer benefit.

Filed Under: cable tv, class action, fees, hidden fees, truth in advertising
Companies: comcast

EFF Asks FTC To Demand 'Truth In Labeling' For DRM

from the that's-a-strategy dept

Interesting move by Cory Doctorow and the EFF in sending some letters to the FTC making a strong case that DRM requires some "truth in labeling" details in order to make sure people know what they're buying. We've been pointing out for years, that DRM often means that you don't really own what you think you bought. The argument is pretty straightforward:

The legal force behind DRM makes the issue of advance notice especially pressing. It’s bad enough to when a product is designed to prevent its owner from engaging in lawful, legitimate, desirable conduct -- but when the owner is legally prohibited from reconfiguring the product to enable that conduct, it’s vital that they be informed of this restriction before they make a purchase, so that they might make an informed decision.

Though many companies sell products with DRM encumbrances, few provide notice of these encumbrances. Of those that do, fewer still enumerate the restrictions in plain, prominent language. Of the few who do so, none mention the ability of the manufacturer to change the rules of the game after the fact, by updating the DRM through non-negotiable updates that remove functionality that was present at the time of purchase.

The letter also includes numerous examples of people being stymied from actually using products they had purchased, thanks to unclear DRM restrictions. Here's an example from the music world:

Adam J installed Microsoft’s Groove and it automatically imported his iTunes and Amazon libraries, and automatically -- and erroneously -- flagged 30% of his collection as being DRMencumbered. It then added Groove’s own DRM to these tracks, and they will no longer play unless he buys a premium connection and even then, only when he is connected to the Internet.

And here's one from the hardware world:

John F bought a 27” Sony Wega HD flat-screen TV from a Best Buy store in 2004, believing that the set’s HDMI port would accommodate his PC, allowing him to use it as both a TV and a computer monitor. However, Sony had deployed DRM code to prevent this use, significantly reducing the value of his $2,100 purchase. There was no notice of this DRM, and store personnel were not aware of it.

There are a lot more like that. In a separate letter from EFF, along with a number of other consumer interest groups, but also content creators like Baen Books, Humble Bundle and McSweeney's, they suggest some ways that a labeling notice might work.

This is an interesting approach to dealing with DRM. I'm always a little wary of the need to go running to the government for help without other alternatives being exhausted first, but the letters do make a strong case that this is a longstanding problem that has not been solved through the marketplace. Of course, it might be nice if retailers simply adopted this directly first, rather than it getting to the point where the FTC needs to step in.

Filed Under: drm, ftc, truth in advertising, truth in labeling

Doctor Criticized For His Questionable 'Treatment' For Alzheimer's Patients Files SLAPP Suit To Silence Critic

from the and-the-lawsuit-is-equally-questionable dept

Dr. Edward Tobinick was the subject of an LA Times article in 2013 -- I'd link to it, but it appears to have disappeared, though I don't know why -- which highlighted his (apparently now discontinued) practice of prescribing a particular drug, Enbrel, for Alzheimer's patients. Enbrel is approved for the treatment of arthritis. Steven Novella, a physician at Yale and who maintains the ScienceBasedMedicine blog which (you guessed it) focuses on playing up science-based medicine while criticizing more quackery-based medicine, wrote a critical blog post about Tobinick's practice. Novella carefully lays out his arguments as to why Tobinick appears to be engaged in what he believes is quackery. It's actually fairly even-handed, laying out various possibilities, and noting that there is some gray area for off-label uses of the drug. But then he points out that Tobinick appears to be making claims way beyond what any evidence supports:

The claims of Tobinick, however, are not in the gray area—they are leaps and bounds ahead of the evidence. Further, the conditions he claims to treat are not clearly immune-mediated diseases. It’s one thing to use an immune-suppressing drug to treat a disease that is known to be caused by immune activity, and probably the kind of immune activity suppressed by the drug.

Tobinick, however, is claiming that a wide range of neurological conditions not known to be immune mediated are treated by a specific immunosuppressant.

On his website he cites many studies, but none of them establish the effectiveness of Enbrel for any of the conditions he is treating. Most of them are simply identifying that TNF is increased in the condition. This is very weak evidence, however, as markers of immune activity are frequently increased in diseases that are not caused by immune activity. The immune system is very reactive—it reacts to disease with inflammation (often what we refer to as the cleanup crew). The inflammation is not causing the disease, it is simply the body’s reaction to it.

Tobinick was apparently upset about this and asked Novella to take down the blog post. Novella, quite reasonably, refused. Thirteen months later, Tobinick sued Novella and Yale University. Over what, you might ask? Well, there's clearly no defamation claim here, so Tobinick claims that Novella's blog post is an advertisement and represents "false advertising." He also claims that it's trademark infringement, and then demanded the blog post be taken down via an injunction. Novella is fighting back in court and on his blog. On the blog, he highlights the ridiculousness of Tobinick claiming this is an advertisement:

An interesting wrinkle of this suit is that Tobinick is claiming that my blog post is an “advertisement.” This is a legal maneuver as the threshold for forcing someone to remove an advertisement is much lower than the threshold for suppressing their free speech. I can only assume that he and his attorneys are not bothered by the fact that blog posts on SBM are blatantly not advertisements.

In the case of the Enbrel article he had to make the absurd claim that the post (which does not mention my own practice) was an advertisement for my neurology practice at Yale, designed to attack a “competitor.” He would have us believe that Yale neurology in Connecticut is concerned about a distant clinic. Further, Yale Neurology is an academic practice. Our problem is too many referrals and long wait times, not competitors. To see how desperate the claim is, he argued that because I use Botox, which can be used to treat symptoms following stroke, that his treatments for stroke represent a competitor. However, I don’t use Botox to treat stroke patients. I mostly use it to treat migraines, as I am a headache specialist.

From there, he digs in, with even more detail about his criticism of Tobinick's "practice."

Tobinick is not a neurologist, and yet he feels it is appropriate for him to treat multiple neurological conditions with an experimental treatment. It is generally considered unethical for physicians to practice outside of their area of competence and expertise. He is trained in internal medicine and dermatology and is certified in those specialties. He has never completed a neurology residency nor is he board certified in neurology.

Despite his lack of formal training and certification, he feels he has ushered in a “paradigm shift” in the treatment of Alzheimer’s disease – a disease that has proved challenging for actual neurologists for decades.

His treatment of choice is perispinal etanercept (Enbrel), which basically is an immunosuppressant drug. He is using this treatment for not only Alzheimer’s disease, but neurological deficits following stroke, traumatic brain injury, and pain resulting from vertebral discs. He therefore claims that the neurological deficits in these various conditions result from active inflammation (specifically tumor necrosis factor – TNF) and by inhibiting TNF “rapid improvement” in neurological function is possible.

These claims are highly implausible, and in my opinion reflect his lack of training and expertise as a neurologist. Strokes cause ischemic damage to the brain – brain cells in severe stroke die. Inflammation following stroke is incidental, not causative. Yet Tobinick claims that 10 years following a stroke, long after any neurological recovery would have occurred, patients can improve by inhibiting TNF.

He makes the same claim for Alzheimer’s disease, despite the fact that this is a neurodegenerative disease resulting in loss and destruction of brain cells. An anti-inflammatory drug is not going to bring back dead brain cells, yet he claims “rapid improvement” is possible.

There's more of that. The response to the request for the injunction, written by lawyer Marc Randazza is (in typical Randazza fashion) well worth the read. Here's just a snippet.

Dr. Novella’s critical opinions of the Plaintiffs are not outlier views. In fact, the prevailing view seems to be that Dr. Tobnick is, at best, irresponsible. On the first page of Google alone, there are numerous other articles written by other authors, entirely unrelated to the article at hand, that also express critical and unflattering opinions of Tobinick and Plaintiffs’ “medical” practices. For example, in 2008, The Alzheimer’s Forum published an article criticizing Tobinick, his treatment of patients, and his self-promotional “studies.” That article evaluated a paper published by Tobinick, in which he presented a study involving one patient who purportedly improved his Alzheimer’s condition within minutes of receiving Enbrel injections (as if such a thing were possible). The article’s author reached out to seven independent researchers, who all “expressed unease about the way in which these studies were performed.” Furthermore, in that article, Cynthia Lemere, associate professor of Neurology at Bringham and Women’s Hospital in Boston stated “[t]his is exciting, but very preliminary information. The appropriate way to pursue it at this stage is to apply to FDA and NIH for support to run a rigorous trial, not to promote it to the general public.” That article presented the opinion that Tobinick’s use of Enbrel gave false hope to Alzheimer’s patients, without being based in scientific and clinical research, and pointed to a number of fatal flaws in the case report authored by Tobinick.

More importantly, also on the first page of a Google search for “Dr. Tobinick” is an article published by Casewatch.org, outlining the history of disciplinary action against Tobinick in California, including the formal accusations filed by David Thorton as the Executive Director of the Medical Board of California, Department of Consumer Affairs. The stated allegations in the disciplinary action were for unprofessional conduct relating to his advertisement of Enbrel for the treatment of neck and back pain, in violation of the California Health and Safety Code, constituting unprofessional conduct. The second cause of action was for Tobinick’s unprofessional conduct relating to his failure to obtain a permit for use of “Institute of Neurological Research” as a fictitious name. The disciplinary action was settled, resulting in a one-year probationary period for Tobinick, in lieu of the revocation or suspension of his medical license and surgeon’s certificate, as proposed by Thornton.

The response also takes on the ridiculousness of arguing that this is an "advertisement" and a trademark claim rather than an attempt to do an end run around defamation law.

Plaintiffs have cleverly attempted to disguise this defamation claim as a Lanham Act claim – presumably to ensure the availability of Federal Court jurisdiction and to try to sidestep the clear case law that cuts against them in defamation actions. But, no matter how eloquently someone may call a “dog” a “chicken,” it will never lay eggs. And styling a specious defamation claim as a Lanham Act claim does not remove the underlying speech from the protections afforded by the First Amendment.

Plaintiffs come to this Court seeking extraordinary relief in the form of an impermissible prior restraint on Defendant’s speech because of allegedly “false advertising.” Tobinick’s request for this exceptional relief is impermissible under the First Amendment, and a request for this Court to impose a prior restraint on Defendant’s speech. “The clearest definition of prior restraint is an administrative system or a judicial order that prevents speech from occurring.” There has been no judicial determination as to whether Dr. Novella’s article is “false,” nor whether it is “advertising.” (It is neither.) Yet, Plaintiffs come to this Court requesting Constitutionally extraordinary relief – the suppression of speech without due process. The motion must be denied.

So, the end result of a questionable, bogus SLAPP lawsuit in an attempt to silence a critic -- is much more attention paid to the original claims and other aspects of Tobinick's past.

Filed Under: advertising, alzheimers, anti-slapp, defamation, edward tobinick, enbrel, quackery, slapp, steven novella, trademark, truth in advertising
Companies: yale