Home / Blogs

Comcast Fires Back at E360

John Levine

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. More blog posts from John Levine can also be read here.

Related topics: Spam


Don't miss a thing – get the Weekly Wrap delivered to your inbox.


To post comments, please login or create an account.

Related Blogs

Related News

Explore Topics

Dig Deeper

Mobile Internet

Sponsored by Afilias Mobile & Web Services

DNS Security

Sponsored by Afilias

IP Addressing

Sponsored by Avenue4 LLC


Sponsored by Verisign

Promoted Posts

Buying or Selling IPv4 Addresses?

Discover ACCELR/8, a transformative IPv4 market solution developed by industry veterans Marc Lindsey and Janine Goodman that enables organizations buying or selling blocks as small as /20s. more»

Industry Updates – Sponsored Posts

Government Guidance for Email Authentication Has Arrived in USA and UK

Nominum Launches Comprehensive Suite of DNS-Based Security Solutions for Russian Service Providers

Nominum Sets New Record for Network Speed and Efficiency

DNS on Defense, DNS on Offense

Managing Outbound Spam: A New DNS-based Approach For Stopping Abuse (Webinar)

MarkMonitor Fraud Intelligence Report, Q4 2011

MarkMonitor Fraud Intelligence Report Released for Q2 2011

The Botnet-Counterfeit Drugs Connection

New Monthly Fraud Intelligence Report Now Available

MarkMonitor to Highlight Importance of Cross-Functional Approach to Brand Protection

Paid Search Ads Can Lead to Fake Goods

Open Phishing Season

.ORG Highlighted for Success in Fighting Phishing

Latest Brandjacking Index Examines How Fraudsters Abuse Financial Brands

New Report Shows .INFO Domain Safest from Phishing Attacks

MarkMonitor AntiFraud Solutions Combine Proven Antiphishing and Expert Antimalware Capabalities

COCC Partners with MarkMonitor for Anti-Phishing Services

ICANN Mexico City Meeting Brings a Significant Shift in Direction for Brand Rights Holder Issues

MarkMonitor Year-in-Review Report Finds Online Abuse of Major Brands Was a Growth Industry for Fraud

Committed to Keeping the Internet a Safe Place