In the lawsuit, filed in Alameda County, Calif., Jon Hart claimed that Comcast impeded his visits to peer-to-peer sites like BitTorrent by slowing down service to those sites. Hart, who seeks class-action status, alleges that the delays happened after he upgraded to an ultra-high-speed Internet access plan specifically to access such sites. He accuses Comcast of breach of contract, among other claims.
The suit comes several weeks after an Associated Press investigation revealed that Comcast was interfering with traffic to BitTorrent, Gnutella and other peer-to-peer sites. That report prompted the Berkman Center for Internet & Society along with other organizations to file an FCC complaint earlier this month.
Comcast has steadfastly denied blocking file-sharing sites, but acknowledges that it sometimes slows traffic. The company says such steps are necessary to manage its network. "Comcast does not, has not, and will not block any websites or online applications, including peer-to-peer services," the company said in a statement. "We have a responsibility to provide all of our customers with a good Internet experience and we use the latest technologies to manage our network so that they can continue to enjoy these applications."
A Comcast spokesman declined to comment specifically on Hart's lawsuit, saying the company had not yet been served with the complaint.
In his suit, Hart says he subscribed in September to Comcast's "Performance Plus" plan, billed as offering "scorching," "crazy-fast" and "mind-blowing" speeds. The service cost $20 a month more than what he paid for his regular broadband line, according to his lawyer Mark Todzo.
Hart alleges that the subscriber agreement promises download speeds of between 4 Mpbs and 16 Mpbs, and upload speeds vary from 384 Kpbs to 786 Kpbs. But, he charges, Comcast's interference with traffic to peer-to-peer sites resulted in traffic to those sites moving at speeds "exponentially slower than the speeds advertised."
Some lawyers say that Hart's breach of contract claim appears to be relatively straightforward. "It's a good case for breach of contract because he's saying he isn't getting what he was promised," says Wendy Selzer, a visiting professor at Northeastern University School of Law and a fellow at the Berkman Center.
She adds that Comcast can correct the situation in the future "simply by describing more plainly what they are and aren't offering."
"That gets us at least to a point where a customer can make an educated decision rather than a blind leap," she says.
John Palfrey, executive director of the Berkman Center, adds that Hart's suit should raise the public's awareness of net neutrality principles. "This is the kind of lawsuit that forces an issue and raises the profile of the network neutrality debate," he says.
The FCC in 2005 issued a statement broadly endorsing the principle of net neutrality, or that Internet access providers shouldn't discriminate against sites by restricting or degrading access. But that document contained a footnote stating companies could engage in "reasonable network management."
Comcast maintains that it's merely slowing traffic to a small number of consumers who visit peer-to-peer sites at peak times in order to provide reliable service to the vast majority of its subscribers. "We engage in reasonable network management to provide all of our customers with a good Internet experience, and we do so consistently with FCC policy," EVP David L. Cohen said.
But net neutrality advocates say Comcast's interpretation of the document effectively guts net neutrality principles. "If degrading applications was 'reasonable network management,' the policy would mean nothing," a coalition including the Berkman Center and other groups argue in their FCC complaint.