NY Court: Charter Can't Use Net Neutrality Repeal to Dodge Suit

Early last year, New York state sued Charter Communications (Spectrum) for nowingly selling broadband speeds company executives knew they couldn't provide. The lawsuit alleged all manner of shady behavior by the cable giant, from admissions that it was actively gaming FCC efforts to measure speeds (via the custom-firmware embedded routers the FCC uses for said purpose), to actively causing congestion at interconnection points to drive up costs for transit and content companies.

Ever since, Charter lawyers have trying to have the lawsuit dismissed, arguing, among other things, that states lack the authority to hold ISPs accountable under consumer protection law.

To do that, Charter lawyers have tried to claim that states are no longer allowed to try and protect consumers in the wake of the FCC's historically-unpopular net neutrality repeal. ISP lobbyists for Charter, Verizon and Comcast successfully lobbied the FCC to include language in the repeal "pre-empting" states from their ability to hold ISPs accountable for failed promises and substandard service.

And while both the FCC and ISPs have claimed they'll take legal action against any state that tries to do so, legal experts say the claim doesn't hold water. In fact, ironically, some legal scholars argue that when the FCC rolled back the Title II classification of ISPs as common carriers under the Telecom act, they actually shot their own legal authority over states in the foot.

This week, the New York State courts provided Charter with another major setback in its quest to dodge accountability for advertising speeds the lawsuit states executives knew they couldn't deliver. The First Department of the Supreme Court, Appellate Division of the State of New York ruled (pdf) that no, the FCC has not legally preempted states from enforcing laws "that prevent fraud, deception and false advertising" in regards to broadband service.

With the decision, the lawsuit against Charter can now proceed, despite Charter's best efforts to scuttle it.

"This is great news for broadband users in New York, and it bodes well for state efforts to protect broadband users generally," consumer group Public Knowledge said of the ruling. "Such efforts are especially important given the current FCC’s decision to abdicate many of its consumer protection responsibilities with respect to broadband."

State authority will be a bigger issue than ever now that large ISPs like Charter have lobbied the Trump administration to dismantle a wide range of consumer protections governing everything from privacy to net neutrality.