• by Wendy Davis , Staff Writer @wendyndavis, April 21, 2010

In August of 2008, right around the time the Federal Communications Commission voted to sanction Comcast for throttling peer-to-peer traffic, another Internet service provider, RCN, found itself hauled into court on virtually identical allegations.

In a class-action lawsuit filed in the southern district of New York, RCN subscriber Sabrina Chin alleged that the company used "stealth technology" to cut off certain traffic. She argued that the alleged throttling breaches RCN's marketing promises of Web service.

Additionally, she alleged, RCN had an incentive to discourage peer-to-peer traffic in movies, games and TV shows, in hopes that subscribers would pay an extra $15 a month for RCN's premium "uncapped" service.

Recently, RCN and Chin quietly agreed to settle the case. RCN promised that it won't degrade peer-to-peer traffic for at least 18 months. RCN also said it will pay the lead plaintiff $3,000. Other subscribers won't receive any monetary awards.

When Chin brought her case, she could point to the FCC's ruling against Comcast as support for her position that RCN acted unlawfully. But now that an appellate court has vacated that ruling on the grounds that the FCC exceeded its authority, it's no longer clear whether ISPs can legally degrade traffic.

Certainly subscribers such as Chin can continue to argue that ISPs that promise fast Web access and then throttle traffic are engaged in false advertising. But ISPs can preclude that argument in the future simply by revising its marketing copy.

Ultimately, until there's more competition among ISPs -- or clear rules banning them from discriminating against applications or sites -- consumers and publishers alike will be vulnerable to the whims of broadband carriers.