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Comcast Fires Back at E360

Back in January, bulk mailer E360 filed a suit against giant cable ISP Comcast. This week Comcast responded with a withering response. (Copies available at spamsuite.com.) Their memorandum of law wastes no time getting down to business:

Plaintiff is a spammer who refers to itself as a “internet marketing company,” and is in the business of sending email solicitations and advertisements to millions of Internet users, including many of Comcast’s subscribers.

Comcast’s analysis is similar to but even stronger than the one I made in January, buttressed of course with lots of case law. They argue none of E360’s legal arguments are valid, so there’s no case and Comcast has moved for judgment.

For E360’s first claim, tortious interference, Comcast first points out that the CDA immunizes ISPs from exactly this sort of suit, and even if it didn’t, E360’s customers are not Comcast users, they’re the advertisers who pay for the mail, and Comcast hasn’t interfered there.

For the second claim, denial of service attacks, Comcast points out that their computers are merely responding to E360’s, which is not by any stretch of the imagination an attack. Their analogy is:

...a telemarketer who calls a phone number and receives no answer. Instead of hanging up, however, the telemarketer stays on the line and allows the phone to ring and ring, then claims that the owner of the telephone number has damaged the telemarketer because he or she was unable to make any other calls during the time the phone continued to ring.

With respect to E360’s claim that Comcast sends fake rejections which makes E360 remove addresses from their lists, they point out that the inanity of this argument:

Moreover, given its claims that Comcast transmits “fraudulent” or “false” bounce data regarding inactive or non-existent accounts, it is nonsensical that Plaintiff relies on such “fraudulent” information to irretrievably delete the e-mail addresses in question. In short, Plaintiff seeks to hold Comcast liable for Plaintiff’s actions taken in reliance (and, from its pleadings, continued reliance) on information it thinks is inaccurate.

For the third claim, First Amendment violations, Comcast points out that they’re not a state actor, since the First Amendment applies only to governments, and cites lots of case law.

For the fourth claim, unfair competition and business practices, Comcast points out that the law in question requires that a plaintiff cite a particular unfair practice, and have been deceived in the course of trade or commerce. But E360 cited no unfair practices, does not do business with Comcast, and the copy of the Comcast’s AUP that allegedly shows the unfairness in fact says that Comcast may filter whatever mail it wants to. Oops.

The best thing about this response is that it completely disposes of the case without any need to decide whether any of E360’s claims are actually true. Even if they were all true, they still have no case.

Assuming the judge finds this response as strong as I do, I expect we’ll be seeing a request by Comcast for costs and sanctions, which with any luck will make E360 go away for good.

By John Levine, Author, Consultant & Speaker

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