U.S. District Court Judge Richard Cebull in Montana rejected Bresnan's argument on that point. He ruled that the term wasn't valid because it was presented to consumers "on a take-it-or-leave-it basis."
The judge might have decided differently had he waited until this week to make a decision. That's because today, the U.S. Supreme Court ruled that companies can enforce arbitration clauses that require consumers to bring cases individually to an arbitrator rather than participate in class-actions.
In the 5-4 decision, the Supreme Court ruled that consumers couldn't pursue a class-action against AT&T for allegedly advertising discounted cell phones and then charging tax on the full price. The case was brought by Vincent and Liza Concepcion, who sought to represent a class of people who had purchased the discounted devices.
Theoretically the Concepcions and other consumers can still pursue claims against service providers in arbitration. Realistically, however, clauses that prohibit class-action lawsuits will effectively prevent many people from suing -- as Justice Stephen Breyer said in a dissenting opinion. "In general agreements that forbid the consolidation of claims can lead small dollar claimants to abandon their claims rather than to litigate," he wrote. "What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?"
In class-actions, lawyers for successful plaintiffs are entitled to recover attorneys' fees that can reach millions, making it worthwhile for those lawyers to bring suit.
While the full impact of today's decision isn't yet known, it at least has the potential to squelch a great deal of litigation against broadband companies (and other service providers) on issues ranging from privacy to failure to deliver advertised Web speeds to throttling traffic.