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P2P Foes Try Class Action

7/25/2008 8:00 PM Eastern

The coalition of Internet activists who have made a cause célèbre of Comcast’s practice of curtailing peer-to-peer keep training their flamethrowers on the nation’s biggest cable provider.

The MSO now faces a federal class-action lawsuit, led by an outspoken Comcast critic, alleging the company cheated customers by surreptitiously “blocking” Internet file transfers.

Oregon resident Robb Topolski, the lead plaintiff in the suit, has regularly complained about Comcast’s efforts to throttle back P2P traffic, including at a Federal Communications Commission hearing on providers’ bandwidth-management practices.

Top 10 U.S. Broadband Providers
Subscribers in millions, as of Q1 2008.
SOURCE: Leichtman Research Group
AT&T 14.6
Comcast 14.1
Verizon 8.5
Time Warner Cable 7.9
Cox 3.8
Charter 2.8
Qwest 2.7
Cablevision 2.3
Embarq 1.3
Windstream 0.9

The suit was filed July 18 in the U.S. District Court for the District of Oregon. The court has not certified a class.

The suit asserts Comcast violated unfair trade practices and consumer-protection laws by misrepresenting its broadband service as “unfettered” and that it provides “the fastest Internet connection.”

“Comcast knowingly caused its subscribers to pay for services that they did not receive,” Topolski’s complaint said.

Topolski is identified in court documents as a networking professional currently serving as “chief technology consultant” for Free Press and Public Knowledge, two public interest groups that have targeted Comcast over the peer-to-peer issue.

While P2P programs like BitTorrent are often used to download pirated music or movies, Topolski’s suit said he attempted to use a file-sharing program on Comcast’s network to exchange Tin Pan Alley-era songs in the public domain.

Asked for comment, Comcast director of corporate communications Charlie Douglas said the company does not comment on pending litigation.

In previous statements, Comcast has insisted repeatedly that it “does not block any Internet content, application or service” and that it takes limited measures to manage traffic on its broadband network that fall under the FCC’s “reasonable network management” guidelines for Internet service providers.

Topolski claims to have conducted tests that first identified that Comcast was intentionally disrupting BitTorrent file transfers, which he posted on the discussion site DSLReports.com in May 2007.

Since then, Comcast’s approach to managing peer-to-peer traffic has erupted into a political issue for network-neutrality proponents who want to restrict the ways Internet providers can manage their networks. As a result, the MSO has pledged to work with BitTorrent and P2P companies to adopt a “protocol-agnostic” technique that would limit bandwidth consumption for only the heaviest-downloading users during times of peak congestion.

FCC chairman Kevin Martin this month circulated a proposal to rule that Comcast violated agency policy by “blocking” consumers from freely using Internet applications.

Insight Communications vice chairman and CEO Michael Willner, who has testified in defense of cable operators’ rights to control the bandwidth on their networks, said he had not seen the Topolski suit and could not comment on it specifically.

But he said that if Insight did not actively manage its data networks, the 3% of the broadband subscribers who use P2P applications would consume 80% of the available bandwidth.

“The fact is, cable operators work very hard to ensure that the networks are managed in a way that’s fair for everyone,” Willner said, adding, “We live in a very competitive world.”

The Oregon suit defines the class as any U.S. resident who purchased or received high-speed Internet access from Comcast between July 18, 2002, and the forthcoming date of class certification.

As of the end of March, Comcast provided high-speed Internet service to 14.1 million customers.

The class-action suit seeks refunds for affected Comcast subscribers, plus statutory and punitive damages and other fees.

Topolski, asked via e-mail how much he believes Comcast owes him, replied that the question is “tremendously complicated.”

“This involves more than just Robb Topolski and how he was impacted,” Topolski wrote. “It involves a very large group of people, it spans quite a bit of time on an expensive service, and it involves deception. So the lawyers are going to have to figure out how to explain this to the courts and the process ahead has to decide the amount.”

Topolski claimed, however, that his primary motivation for participating in the class-action suit is to force Comcast “to end the interference and to fulfill the obligations of an Internet service provider.”

“Hopefully, between the administrative proceedings in the FCC and the civil proceedings in court, all ISPs will be deterred from ever trying the same power grab in the future,” he wrote.

The plaintiff’s attorneys are the law firms Gilbert Randolph LLP, SimmonsCooper LLC, and Hanly Conroy Bierstein Sheridan Fisher & Hayes LLP, along with Portland, Ore.-based attorney Kari Hong.

The firms also have filed similar class-action suits against Comcast in three states — California, Illinois and New Jersey — and the District of Columbia, which are pending.

Comcast separately is the target of at least two individual subscriber lawsuits, in California and Washington, D.C., alleging false advertising pertaining to its P2P bandwidth throttling.

September