Opt-out of Comcast Settlement, Critics Advise

Clients of Comcast, a US cable broadband provider, are encouraged to reject a proposed settlement of the Hart v. Comcast P2P lawsuit. This lawsuit claims that although Comcast had advertised specific speeds and unlimited internet access, but then limited some P2P file-sharing traffic on its High-Speed Internet network.

Bandwidth Throttling

A study carried out by the Max Planck Institute for Software Systems showed that Comcast, among other broadband providers, slowed BitTorrent traffic at all times of the day, not just during times of peak congestion. This study was conducted between March 18, 2008 and July 25, 2008. The BitTorrent test was run from users in 135 countries worldwide, involving 1,987 different internet service providers (ISPs).

With 8,000 nodes worldwide, the study found that Comcast was interrupting between 30 and 80 percent of BitTorrent upload attempts at all times. In response to these findings, Comcast insisted that although it does slow some P2P traffic, this is done only during high-traffic times. In a statement, Comcast described its practices as “reasonable network management.”

Comcast Settlement

The settlement was introduced in December 2009. Despite Comcast’s continued denial of these claims, it has revised its P2P management techniques and has attempted to settle in order to avoid the cost of further litigation. Comcast has offered to credit or refund current and former customers, agreeing to pay up to $16 million to eligible customers. According to the terms of the settlement, this would include:

  • Customers who had used P2P software between April 2006 and December 2008
  • Customers who had used Lotus Notes to send email between March and October 2007

Eligible customers have the following options:

  1. File a claim by submitting a claim form. In doing so, customers can receive the credit or refund from the settlement.
  2. Exclude themselves from the settlement class. In doing so, customers maintain the right to sue independently about the lawsuit claims.
  3. Object to the settlement, or comment on the settlement. This involves speaking at the Fairness Hearing, either independently or through a lawyer.
  4. Do nothing. This means clients remain in the settlement. They will receive no compensation and they relinquish their right to sue independently.


Critics and experts are urging Comcast customers to choose to opt-out of the settlement. In presenting the settlement, Comcast in no way admits to any wrongdoing. A number of observers have pointed out that this is nothing but a slap on the wrist for the large corporation. The settlement is structured in such a way that all those who do want to claim must first confirm their status as file-sharers.

Although Comcast has allocated $16 million for this settlement, each eligible customer can only receive a maximum of $16, about 50 cents per month for each month of limited bandwidth. Arguably, this is inadequate compensation for an over $50/month service. Given that the Federal Communications Commission (FCC) was left with continued oversight of Comcast, critics argue that tolerance of such interference and mismanagement may continue, unless consumers demand otherwise.

FCC & Net Neutrality

After a long FCC investigation, Comcast was forced to disclose and stop the bandwidth throttling and blocking of traffic in 2008. However, on April 6, 2010, a federal appeals court rejected the FCC’s authority to sanction Comcast for interference. This effectively reverses the Commission’s first attempt to enforce network neutrality.

Network neutrality (also referred to as internet neutrality or net neutrality) is a consumer-oriented principle that advocates no restrictions for user access, regarding content, sites, platforms or equipment. The principle applies to restrictions or controls imposed by internet service providers, or governments.

Supporters of net neutrality argue that telecommunications companies, such as Comcast, aim to exercise increasing control over the service pipeline. Net neutrality principles would then ensure that such companies cannot screen, interrupt or filter internet content, unless the appropriate court orders are presented. This principle also ensures that the internet is a free and open technology, by discouraging preferential treatment of internet traffic, which would put newer companies at a disadvantage.

Detractors of net neutrality argue that regulation is largely unnecessary and that tiered services enable different types of consumers to have access to suitable broadband internet services. According to opponents, prioritizing bandwidth is needed to allow online companies to be productive and innovative. Net neutrality legislation could make it more challenging for ISPs to perform important packet filtering in order to prevent denial of service attacks, filter out email spam and prevent or respond to the threat of computer viruses.

The Four Freedoms

Despite contentions on both sides, there is general net neutrality in the US. In 2004, the FCC announced a set of Network Freedom principles. These are non-discrimination principles that regarding consumers access to telecommunication technologies. These four freedoms and their descriptions are outlined below:

1. Freedom to access lawful internet content

  • Users should have access to internet content of their choice, as long as it is legal.
  • Premium charges for broadband must be justified in terms of the service consumers receive and the content they can access.
  • While ISPs have to manage their networks, there should be reasonable, clearly communicated limits in service contracts.

2. Freedom to run applications and services

  • Allowing users to run the applications they want is crucial in driving demand.
  • Developers should be confident that their products will not face interference.
  • Users should have this freedom, unless they exceed the limits of their service plan, or harm the network.

3. Freedom to connect devices

  • Devices allow users greater choice, value and personalization.
  • Users should be free to choose any devices, as long as they operate within their service plan and do not enable theft of service.

4. Freedom to obtain service plan information

  • Consumers have the right to receive meaningful information about their service plans. For instance, they should know how their services protect against spam, spyware and other potential invasions of privacy.
  • While providers have the right to offer different tiers of service in terms of bandwidth and features, users must be well-informed, as there should be competition between network providers, application and service providers, and content providers.

Critics have pointed out that these four freedoms are difficult to uphold, in light of the conditions that the FCC provides regarding service plan limitations. According to this position, it is impossible to reinforce the rights of the user or consumer, if they are dependent upon service plans which disregard those very rights.

Appeal & Analysis

Previous FCC actions have resulted in significant deregulation of US communications networks, creating a legal loophole that renders the Commission unable to protect consumer privacy or promote broadband internet access. Public interest groups advise the FCC to respond to the Comcast appeal by reinstating common-carrier regulations for internet service.

Under the Communications Act of 1934, title II, telecommunications carriers are supposed to be regulated by the FCC. Title I of the Act generally regulates computer networks, such as the internet. Many ISPs have attempted to differentiate themselves from common carriers. As a result, the FCC deemed ISPs (i.e. internet DSL and internet cable services) as “information services.” This decision has given ISPs market power and the ability to discriminate the content and applications used on their networks. This is in direct contrast to the FCC’s push for network neutrality and the principle regarding consumers’ freedom to access content and run applications of their choice.

Comcast appealed against federal court’s ruling on the basis that the FCC had overstepped its authority. It was important for net neutrality advocates that the FCC net neutrality approach was essentially invalidated by the appeal, which overturned the original ruling. Digital rights groups, such as Free Press and Public Knowledge point out that it is a direct consequence of aggressive deregulation on the part of the FCC.

It is argued that the Comcast case severely limits the FCC’s authority to regulate ISPs in the future. It sets a dangerous precedent and renders the Commission powerless to promote an open-internet approach. However, the FCC does have the option to appeal this decision and it may also choose to re-categorize ISPs into a stricter regulatory classification, perhaps placing it alongside telephone rules, thereby expanding the Commission’s jurisdiction.


This article discusses the recent Comcast BitTorrent bandwidth throttling lawsuit and subsequent appeal. The class members’ option to agree to the settlement is explored and is determined to be largely disadvantageous to the consumer. Concepts such as the FCC’s four freedom principles and net neutrality approach are also examined, in light of the Comcast case and industry deregulation.

CIPP Preparation

In preparation for the Foundations and Certified Information Privacy Professional exams, a privacy professional should be comfortable with topics related to this post, including:

  • US Regulatory Authorities – Federal Communications Commission (CIPP I.A.c.ii)
  • Web Protocols (Foundations III.A.a)

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