Court Sides With Cablevision In Neutrality Dispute

by Wendy Davis, Apr 27, 2012, 5:23 PM

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A few years ago, several major Internet service providers embarked on a questionable plan to manage congestion on their networks by throttling peer-to-peer traffic.

This scheme didn't go over well with consumer advocates, who accused the ISPs of improperly meddling with traffic. The Federal Communications Commission agreed with the advocates and, in a well-publicized case, voted to sanction Comcast for violating neutrality principles by impeding peer-to-peer traffic.

Later the FCC codified those principles in its net neutrality order, though it's not yet known whether that order will hold up in court. Comcast for its part successfully appealed the sanctions, but also changed its traffic management practices.

But while the FCC debated how to proceed, some consumers took matters into their own hands by suing ISPs.

Comcast was hit with a class-action suit, and agreed to a controversial settlement that required it to pay up to $16 million, or $16 per affected customer. Some observers criticized that amount as too low.

RCN also agreed to resolve a similar class-action lawsuit by promising not to degrade peer-to-peer traffic, and agreeing to pay the consumer who sued $3,000. Other consumers, however, didn't receive any monetary compensation.

Cablevision also was sued by two consumers -- Alyce Serrano and Andrea Londono. They accused the company of violating a federal anti-hacking statute by accessing their computers without authorization in order to throttle peer-to-peer traffic. Serrano and Londono, who sought class-action status, also alleged that Cablevision violated consumer protection laws by using phrases like "blazing fast speed" in its ads.

Unlike Comcast and RCN, Cablevision didn't settle. Instead, the company insisted that the lawsuit against it should be dismissed.

Late last month, U.S. District Court Judge Dora Irizarry in Brooklyn, N.Y. agreed with Cablevision. Irizarry granted the ISP summary judgment, ruling that its terms of service gave it the right to take action to prevent consumers from using "excessive" bandwidth. "Plaintiffs cannot now claim that Cablevision acted 'without authorization' when it restricted their bandwidth," Irizarry wrote.

The judge also dismissed the consumer protection claims, ruling that Cablevision's statements about its fast speeds were "mere puffery," as opposed to legally binding terms.

Today, the consumers filed an appeal.

It could take the appellate court more than a year to issue a decision. Meanwhile, the case shows that consumer lawsuits against individual ISPs are anything but a surefire way of enforcing neutrality principles.

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