Just like Comcast? RCN accused of throttling P2P

[DaBees-Knees]

http://arstechnica.com/tech-policy/news/2010/04/just-like-comcast-rcn-accused-of-throttling-p2p.ars

Net neutrality skeptics routinely point out that only a pair of ISPs, Comcast and Madison River, have been FCC targets for willfully interfering with specific Internet content—so what's the problem?

But a class-action lawsuit against cable company RCN argues that the company was in fact doing something similar, "delaying or blocking" P2P protocols. As reported by Broadband Reports on Monday, the company has agreed to settle the suit without admitting any guilt, but one lawyer argues that the settlement is toothless, and he intends to do something about it.

Full throttle

The complaint against RCN was filed in 2008 by Sabrina Chin and later expanded into a class-action lawsuit. According to the judge's summary, RCN was charged with violating the Consumer Fraud and Abuse Act "by promising its customers 'fast and untapped' broadband Internet service, when in fact [it] was engaging in a network management practice called 'throttling,' which was designed to prevent or delay customers from using the Internet in certain ways, including for 'peer-to-peer' file sharing."

The two sides agreed to a settlement in mid-2009, rather than take the case all the way to trial. That settlement is due to be finalized on June 4, 2010 at the US District Court in lower Manhattan, but the case has largely flown under the radar. Yesterday, a "notice of pendency and settlement of class action" was issued that alerted RCN customers to the settlement, and one Ars reader was aghast at the terms.

Those terms provide nothing for users affected by RCN's practices. Instead, they require the cable company to change its network management practices. These changes are in two parts: a "P2P cessation period" and a "non-P2P cessation period." In both cases, RCN agrees not to engage in certain kinds of network management for 18 months.

These cessation periods would be retroactive: the P2P cessation periods began on May 1, 2009, while the non-P2P cessation period began on April 1, 2008. A moment's math will tell you that, when the settlement is finally approved, one cessation period will already have ended and the other will be ending soon.

Once both cessation periods are over, RCN is allowed to implement whatever throttling regime it wants. Given that a federal court has just removed the FCC's authority to regulate network management, RCN appears to have carte blanche to single out BitTorrent and other P2P traffic for special throttling attention after November 1, 2010.

That's the extent of the settlement. For her trouble, Sabrina Chin will get $3,000, but the class counsel are asking for "attorney's fees of up to $520,000 and an award of expenses of up to $20,000."

This didn't sit well with Mark Lyon, a New York attorney, and he plans to get involved in the case by objecting to the current settlement.

I object

Lyon has been an RCN Customer since moving to New York City, and he tells Ars that he "noticed issues in the past" with VoIP and P2P applications. Then, after receiving yesterday's notice about the settlement, it became clear that "RCN has been engaged in efforts to shape or change the traffic on its network."

This troubled Lyon already, but it became worse when he examined the settlement and found that the non-P2P "no throttling" period had already ended; restrictions on throttling P2P traffic would be up in November.

"I'm going to intervene with the court," says Lyon, who has done so in the past. He objected to the Sony BMG "rootkit" settlement after having his computer damaged by CD driver software included on the discs to prevent copying. The driver couldn't be removed, and it then interfered with the law school test-taking software on his computer at the time.

A lone objection to a settlement certainly won't force a rewrite of the entire agreement, but Lyon believes that he can get class counsel and corporate counsel at least to consider more options before finalizing the deal.

In his view, if RCN could operate without such throttling and blocking in place for the last year, there's no reason it can't do so on a going-forward basis. Lyon wants the settlement to include:

Compensation for the people harmed by RCN’s activities.

Give back the stolen speed by bumping users up one service tier for each month they have been an RCN Internet customer.

Permanent ban on P2P and non-P2P blocking.

Reasonable compensation for class counsel—$540,000 is excessive for a settlement that offers affected class members absolutely nothing.

Given the terms already agreed to by both parties, he's unlikely to get his complete wish list, but he does intend to file a written objection with the court this week and to show up personally at the hearing in June to further his objection.

The class includes all RCN Internet subscribers from August 19, 2003 to July 31, 2009. Those who wish to opt out of the class action can do so by sending a letter to counsel 21 days before the June 4 hearing—so you'll need to act fast if this describes you. Complete legal details and copies of the settlement documents can be found on RCN's website.

Update: We checked in with Free Press, the DC advocacy group that was beating the drum so loudly against Comcast. Research director Derek Turner tells us, "RCN appears to have been utilizing tactics that enabled the company to block or degrade its users' Internet experience. These suspicious 'network management' techniques appear to be occurring throughout the industry. RCN agreed to behave for an 18 month period—what happens after the 18 months is up and consumers are left unprotected? This company's behavior provides further evidence that we need strong net neutrality rules and clear disclosure to protect consumers and to prevent these deceptive practices from becoming the norm among Internet providers."

The dirty tricks brigade still carry on working if they are given half a chance.  One of these days ISPs will give true value for money.