"Charter's claim that the net neutrality repeal order preempts the state
lawsuit is contradicted by the FCC's own statement that the commission will not
'disturb or displace the states' traditional role in generally policing such
matters as fraud, taxation, and general commercial dealings,' the court said."
That, and probably more, right? The FCC has washed its hands of all of this,
leaving other matters, disclosure of company policies, to the FTC. Again, the
FCC being hoisted by their own petard.
Still, this is interesting because it's a test case of what consumer
protections remain. Perhaps, on this matter, the broadband company can state
flatly that the aggregate capacity, whatever speed is specified as "up to," is
shared among x households. And then suggest testing in the wee hours.
I wonder if the courts are going to be more aggressive in these remaining
provisions, with the repeal of the neutrality mandate.
Bert
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https://arstechnica.com/tech-policy/2018/03/charter-appeals-court-loss-still-claims-it-cant-be-punished-for-slow-speeds/
This case could take a while ―
Charter appeals court loss, still claims it can’t be punished for slow speeds
New York AG alleges that Charter promised speeds it knew it couldn't deliver.
Jon Brodkin - 3/2/2018, 2:26 PM
Charter Communications is appealing a court ruling that said the ISP must face
a lawsuit alleging the company falsely promised fast Internet speeds that
Charter knew it could not deliver.
Charter claims that federal regulations, including the recent repeal of net
neutrality rules, preempts the lawsuit filed by New York Attorney General Eric
Schneiderman against Charter and its Time Warner Cable (TWC) subsidiary in
February 2017.
The New York Supreme Court rejected Charter's motion to dismiss the case on
February 16, but Charter is appealing the decision in a state appellate court.
(Despite its name, the New York Supreme Court is not the state's highest court.)
Charter's appeal filed on Wednesday says the court "erred as a matter of law in
denying Charter's motion to dismiss the complaint's allegations regarding
actual broadband speeds, because those claims directly conflict with the FCC's
regime for measuring and disclosing broadband speeds and are therefore
preempted."
Charter still disputes Schneiderman's allegations that TWC's claims of speeds
"up to" a certain Mbps were misleading. The "up to" speed promises "are
substantiated using the FCC's official methodology for defining and describing
actual broadband speed and could not mislead a reasonable consumer," Charter
wrote.
In its appeal this week, Charter also claimed that the lawsuit's "allegations
regarding TWC's subjective representations about its network" are just
"non-actionable puffery."
Court “rejected every argument” made by Charter
By contrast, the state Supreme Court decision said that Charter can be held
accountable for promising speeds "up to" a certain amount if there was no
chance that customers could get those speeds. The ruling said:
Defendants' theory is contrary to New York law regarding "up to" claims.
Spectrum�\TWC'S argument that consumers should have expected to receive
anything less than or equal to the advertised "up to" speeds has been rejected
by the Court of Appeals where, as alleged here, the advertised "up to" speeds
are functionally unattainable as a result of the defendants' knowing conduct.
The state Supreme Court decision also said that Charter failed to "identify any
provision of the FCA [Federal Communications Act] that preempts state
anti-fraud or consumer-protection claims." Charter's claim that the net
neutrality repeal order preempts the state lawsuit is contradicted by the FCC's
own statement that the commission will not "disturb or displace the states'
traditional role in generally policing such matters as fraud, taxation, and
general commercial dealings," the court said. (Charter's net neutrality repeal
argument related to the FCC rules on network management disclosures rather than
the rules on blocking and throttling.)
After winning the Supreme Court decision last month, Schneiderman noted that
the court "reject[ed] every single argument made by Charter-Spectrum in its
attempts to block our lawsuit."
"This decision ensures that our office can continue to hold Charter-Spectrum to
account for its failure to deliver the reliable Internet speeds it promised
consumers," he said at the time.
Among other things, Schneiderman's lawsuit accused TWC of providing customers
with older-generation cable modems that couldn’t produce the speeds customers
paid for. The suit also accuses the company of manipulating speed tests
conducted by the FCC in customers' homes.
Disclosure: The Advance/Newhouse Partnership, which owns 13 percent of Charter,
is part of Advance Publications. Advance Publications owns Condé Nast, which
owns Ars Technica.