February 25, 2008

Comcast Faces Capitol Class Action

By Jennifer Rinaldi

The law firm of Gilbert Randolph has filed a class action suit against Comcast in the Superior Court for the District of Columbia on behalf of its client, Dr. Sanford Sidner, and all DC citizens who have subscribed to Comcast's high-speed Internet service over the course of the past three years.

"There's a growing interest on behalf of consumers in DC that they're not getting the service that they've paid for," said August Matteis, the Gilbert Randolph attorney representing the plaintiffs in this case.

The complaint accuses Comcast of false advertising stemming from the company's claims that Comcast provides the "fastest Internet connection" and "unfettered access to all the content, services, and applications that the Internet has to offer."

The plaintiffs assert that Comcast's representations of its service are allegedly false owing to Comcast's "intentional blocking or impeding of subscriber access to peer-to-peer file-sharing applications."

"I think our claim is pretty simple," Matteis said. "The bottom line is Comcast said they were doing one thing, and they weren't doing it."

The complaint contends that Comcast surreptitiously impersonates the computers of users attempting to share files and sends "forged reset packets" that instruct the transmitting computers to stop sending data. Thus, plaintiffs allege, the users of peer-to-peer applications are denied full access to the Internet despite paying for a service that Comcast promises is "unfettered" and the "fastest" possible. Plaintiffs charge "Comcast's clandestine techniques are similar to those use by totalitarian governments to censor the use of the Internet."

"This is the sort of thing that you'd hope Comcast would prevent other people from doing to you as a customer," Matteis said. "You wouldn't think that they're actually the ones behind it."

One man's censorship is another man's network management.

Under increasing fire for its interference with subscribers using peer-to-peer file sharing, Comcast recently filed a detailed defense of its network management practices with the FCC.

In the FCC filing, Comcast explains that its network management practices "only affect the protocols that have a demonstrated history of generating excessive burdens on the network." Comcast says it only manages those protocols during periods of heavy network traffic, that it only manages uploads, that those uploads are only managed "when the customer is not simultaneously downloading (i.e., when the customer's computer is most likely unattended) ("unidirectional sessions" or "unidirectional uploads")," and that Comcast only delays "those protocols until such time as usage drops below an established threshold of simultaneous unidirectional sessions."

Comcast goes on to state that "although network management practices must respond to new technological developments and necessarily change over time, Comcast to date has not found it necessary to manage traffic associated with downloads or bidirectional traffic. The company qualifies its action as "nothing more than the system saying that it cannot, at that moment, process additional high-resource demands without becoming overwhelmed."

To illustrate this practice, Comcast invokes the analogy of "a traffic ramp control light regulat[ing] the entry of additional vehicles onto a freeway during rush hour." The company points out that one would not claim that the car is "blocked" or "prevented" from entering the freeway. Rather, Comcast says, "it is briefly delayed, then permitted onto the freeway in its turn while all other traffic is kept moving as expeditiously as possible, thereby ensuring order and averting chaos."

Ensuring order and averting chaos?

"This is a case that I would be more than comfortable trying in front of a jury," Matteis said.

- Jennifer Rinaldi