Chickens Coming Home to Roost for Comcast

The maelstrom surrounding Comcast's decision to interfere with P2P traffic on its network gained a new front today as law firm Gilbert Randolph LLP filed a class action lawsuit on behalf of Dr. Sanford Sidner and all the citizens of Washington, DC who've subscribed to Comcast's broadband services in the last three years.

Here's an excerpt from their press release: "The Complaint alleges that Comcast advertises and represents that it provides the "fastest Internet connection" and "unfettered access to all the content, services, and applications that the Internet has to offer." These representations allegedly are false because Comcast intentionally blocks or otherwise impedes its customers' access to peer-to-peer file-sharing applications."

While I've tried to argue in favor of network operators' right to manage traffic on their private networks, I don't see how Comcast is going to be able to defend against their indefensible practice of not delivering the service that they advertise.

You can't advertise one speed but only deliver another without giving customers a realistic idea of what that gap will be and how it will fluctuate throughout the day.

You can't say you provide "unfettered access" and then start fettering that access by actively interfering with legal traffic.

And these truth-in-advertising ideals extend beyond just Comcast to examples like the recent uproar over some wireless companies offering "unlimited" service but then enforcing strict bandwidth caps.

In my mind these issues aren't about preserving private rights to manage traffic; these are about consumer protection and making sure consumers know what they're buying when they pay for broadband.

And, unfortunately for Comcast, I don't think they're going to be able to find enough cover under the defense that their customer service agreements only promise best-efforts service and that they specifically retain the right to manage traffic that could be harmful to their network.

It's not that these aren't legitimate arguments, it's that the vast majority of users don't understand what these things actually mean.

For example, most people don't know that they're not getting the 5Mbps service they're paying for, and as long as their broadband works reasonably well they probably don't care.

Additionally, Comcast's P2P policies don't affect the average broadband user as they for the most part don't use P2P applications.

And Comcast likely won't get much support for its claims of needing to manage P2P traffic to preserve the experience of others on their network as it suggests their networks aren't capable of delivering the service that they promise.

Also working against Comcast is that even though their practices and policies are only impacting a narrow niche of users, the users being hit tend to be the ones who are most vocal in defending their rights.

Ultimately there's no defending a status quo where a provider isn't delivering on their broadband promises.

In fact, the only way that I see Comcast winning this is if they're able to prove that the average consumer knows what "best efforts" service means when they buy it, and that P2P applications constitute traffic that's harmful to their networks and must be stopped, even if the content being delivered is legal.

While I'm no legal expert, I'd hate to be the lawyer charged with proving these points.