December 4, 2007 11:09 PM PST

Annoyed Comcast customer sues over 'always-on' assurance

Posted by Declan McCullagh

Should Comcast be required to live up to its claims on its Web site and in press releases? One annoyed customer in Pennsylvania thinks so.

Excerpt from a Comcast press release, emphasis added.

After Adam Schwartz's Internet connection was down or interrupted for almost two weeks in April 2005, he filed a lawsuit trying to hold the broadband provider to its statements talking about an "always-on" network connection. A federal court ruled in his case last Friday.

The "always-on" line is taken directly from Comcast's own literature. A press release boasts that Comcast's customers have "high-speed, always-on Internet connections."

Schwartz filed a state class action suit against Comcast in Pennsylvania, alleging breach of contract and a violation of the state's consumer protection law. Comcast managed to get the case transferred to federal court and asked a judge to enforce the arbitration clause buried in Comcast's standard subscriber agreement.

Schwartz won, at least preliminarily, when a district judge ruled that there was no valid arbitration agreement. But Comcast appealed, and Schwartz had less luck before the U.S. 3rd Circuit Court of Appeals. It ruled last Friday:

The Subscriber Agreement is activated when Internet service is installed, because it states: "The term of this Agreement shall commence upon the installation of your Service...." Schwartz's contention, that the only agreement he was aware of was the "always on" promise, is nonsensical. For example, this "agreement" contains no payment terms, but Schwartz made regular monthly payments to Comcast. Even resolving all doubts and inferences in Schwartz's favor, it is impossible to infer that a reasonable adult in Schwartz's position would believe that his contract with Comcast consisted entirely of a single promise that the service would be "always on." Comcast offered Internet service under the terms of its Subscriber Agreement, and Schwartz accepted the service, so the terms of the contract are provided by the Subscriber Agreement.

Comcast had claimed that a routine work order that Schwartz signed when disconnecting his cable TV service (but keeping his cable modem) was crucial. The form said: "If other non-installation work was provided, I agree to continue to be bound by the current Comcast Subscriber Agreement." Printed somewhere on the form was the notation "O/L PRO SERV," which apparently referred to Comcast's Internet service.

The 3rd Circuit said that was sufficiently clear ("the Work Order put Schwartz on notice that he was bound by the Subscriber Agreement") and sent the case back to a trial court for further proceedings.