Court Says ISPs Can't Use Net Neutrality Repeal to Dodge Lawsuits For Shitty Service

from the foxes-watching-the-henhouse dept

The Trump FCC's rollback of federal net neutrality rules didn't just kill net neutrality. The repeal also gutted FCC authority over ISPs, shoveling any remaining authority to an FTC that's ill-equipped to actually police ISPs (the entire point and why ISPs lobbied for it). This comically-misleading "Restoring Internet Freedom" order also tries to ban states from protecting consumers. The language, included in the repeal after heavy lobbying by Comcast and Verizon, attempts to "pre-empt" state authority over ISPs.

ISPs quickly got to work trying to use the language to dodge accountability.

Charter Spectrum, for example, has been trying to use the FCC's pre-emption language to dodge a lawsuit for shoddy service. New York State sued Charter last year for falsely advertising speeds company e-mails show execs knew it couldn't deliver. The suit also highlighted how Charter execs routinely gamed a regulator speed test system (comprised of volunteer routers with custom firmware) in an attempt to falsely represent the company's network performance. The company was also accused of artificially inflating congestion to cash in on interconnection disputes.

But Charter's efforts aren't going particularly well. Late last week, The First Department of the Supreme Court, Appellate Division of the State of New York ruled (pdf) that Charter could not lean on the FCC's net neutrality repeal to have the case thrown out, and that it will be proceeding to trial. The ruling found that no, the FCC neutrality repeal did not legally pre-empt states from their right to enforce laws "that prevent fraud, deception and false advertising" in regards to broadband service. Consumer groups were quick to applaud the ruling:

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

Ironically, some legal experts (like Stanford Law Professor Barbara van Schewick) have argued that when the FCC rolled back Title II and neutered its own authority over ISPs, it also dismantled much of the already-limited authority it had to tell states what they can do. ISPs have promised to sue states that try to protect consumers, but it's not clear their legal footing is particularly sound. Meanwhile, the effort to hold ISPs accountable in the wake of Ajit Pai's industry earlobe nibbling has cultivated a newfound appreciation on some fronts for the importance of state rights.

Obviously this will be a fight that plays out on a state by state level, and ISPs are likely to have better luck in some states than others. It's a story that's going to be worth paying attention to, as it will highlight another angle of consumer harm most people aren't even thinking about when they consider the impact of the extremely unpopular repeal of net neutrality.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: broadband, false advertising, fcc, jurisdiction, net neutrality, new york

Companies: charter, charter spectrum