Can an Internet Service Provider Legally Terminate Service to a Bandwidth Hog?
Yes, But Companies Need to Be Clearer in their Terms of Service About When and Why

If a consumer is a "bandwidth hog" - that is, if he downloads too many movies off of the Internet, or watches too many YouTube clips - he may find himself disconnected from the information superhighway entirely. Recently, for example, the Internet Service Provider (ISP) Comcast reportedly cut off the small fraction of subscribers whom it deemed to be bandwidth hogs, on the ground that they were slowing down the network for other customers. The company, however, has not publicized any specific download limits.

Thus far, Comcast appears to be alone among ISPs in terminating bandwidth hogs. However, other ISPs also have purported to reserve the right to do so. Moreover, with cable companies facing tough competition from large telecommunications companies, which are installing new cables capable of carrying more Internet traffic, we may see more companies following Comcast's lead, in order to keep their average download times down.

Do ISPs have the right to cut off bandwidth hogs? As I will explain in this column, the answer is yes, as long as their Terms of Service (TOS) say so and as long as they provide consumers with adequate notice.

However, I will argue that companies' TOS need to be clearer as to when a customer crosses the line. After all, a customer who doesn't know she is a bandwidth hog cannot reasonably be expected to change her behavior.

Comcast's Terms of Service Relating to "Bandwidth Hogs"

According to Comcast's Terms of Service (TOS), users must ensure that their use "does not restrict, inhibit, interfere with, or degrade any other user's use of the Service, nor represent (in the sole judgment of Comcast) an overly large burden on the network," and "does not restrict, inhibit, interfere with, disrupt, degrade, or impede Comcast's ability to deliver and provide the Service and monitor the Service, backbone, network nodes, and/or other network services." According to the TOS, users also must comply with "all Comcast network, bandwidth, and data storage and usage limitations," and ensure that their "bandwidth consumption using the Service does not exceed the Limitations that are now in effect or may be established in the future."

What happens if a user violates the policy? Comcast states that "[i]f your use of the Service results in the consumption of bandwidth in excess of the applicable limitations," Comcast "may, in its sole discretion, terminate or suspend your Service account or request that you subscribe to a version of the Service with Higher bandwidth usage limitations if you wish to continue to use the Service at higher bandwidth consumption levels."

In order words, the TOS appear to give Comcast the right to unilaterally terminate customers who hog bandwidth Is this legal for an ISP to do? The general answer is yes - but a court may read some reasonableness requirements into the TOS, or look to the covenant of good faith and fair dealing that is implied into every contract, to define how and when an ISP can do so.

For instance, courts may look askance if ISPs give consumers too little notice before terminating their service. Comcast, for example, states that it gives customers a month's notice, and adequate time to either fix the problem or to update their service plan to a business account. A court probably would find this reasonable, but would, in contrast, frown on instant terminations without notice.

ISPs Should Give Customers Clear Prior Notice as To The Bandwidth Limits With Which They Must Comply

A court might also find it unreasonable for Comcast and other ISPs to decline to disclose the specific bandwidth limits or caps they have in place, which is the current policy. The reason is simple: How can customers be required to comply with limits of which they are kept ignorant?

The companies' argument for refusing to make their specific limits public is that if they did so, then customers would use as much capacity as possible without tipping the scale, causing networks to slow to a crawl. But this seems very unlikely; most customers simply use the bandwidth they feel they need, without any goal of maxing out as much as they can.

Granted, Comcast has provided at least some rough guidelines for when customers may be getting into "bandwidth hog" territory, estimating that a termination warning will be invoked when there is a daily download of 1,000 songs or four full-length movies. In addition, it has suggested that a customer's usage is excessive when it hits more than 100 times average usage - without making clear what average usage actually is.

Rules of thumb asking customers to count the songs or movies they download may end up being deceptive, however. As web applications evolve, download times for songs and movies may rapidly diminish, making the rules of thumb misleading or making them inaccurately low with respect to more sophisticated customers with superior applications.

One Final Recourse for Customers: False Advertising Suits If ISPs Mislead

Customers who dislike their ISPs' policies, or who are threatened with termination due to what the company deems excessive downloading, may have one final remedy, in some cases. If a particular ISP's advertising misleadingly suggests that Internet use (including downloading) is unlimited, customers may be able to go forward under consumer protection statutes. But when TOS are clear and customers must agree to them when they sign up, this may be a losing battle.

In the end, the battle over the permissible volume of customer downloads is much more likely to be fought in the marketplace, than in the courts. We are far more likely to see new business models where customers may pay for a different level of service in order to get unlimited downloading capability, than to see the "bandwidth hog" issue litigated.