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Modem can't support speed but still billed

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Modem can't support speed but still billed

     I have a Xfinity modem and have upgraded Performance Pro Internet service but their modem can;t handle it and they have kept billing me for it.  A customer service rep said they should have noticed this when I upgraded.  They have never been able to deliver the promised speed but continued to bill.  I know I'm not the only one with their modem and Performance Pro Internet.  Why do they bill me for a product they can't deliver?  Isn't this considered fraud?