Charter Is Already Using Net Neutrality Repeal to Harm Consumers

You might recall that back in February, New York Attorney General Eric Schneiderman sued Charter for misleading consumers and offering service speeds executives knew the company couldn't deliver. The suit accused Charter of a large number of misdeeds, including jacking up the cost of the company's advertised prices via a rotating crop of misleading fees, a practice the company is facing other notable lawsuits for. Most of the complaints mirror consumer complaints we've seen in the wake of the company's last mishandled megamerger.

Less noticed in the lawsuit is the fact that Schneiderman's office repeatedly implies that Charter let peering points congest in order to drive up costs for transit operators and content companies -- and that executives gamed this congestion to trick measurement systems designed to indicate whether Charter was actually delivering promised speeds.

You'll recall that numerous large ISPs were caught doing this, but breathlessly denied these allegations. When the FCC passed net neutrality rules that at least partially constrained this kind of interconnection shenanigans, transit operators and contet companies stated the behavior mysteriously and magically ceased.

You'll note that in the AG complaint (pdf), executives also candidly recommend re-establishing functional peering relationships just long enough to game the SamKnows measurement system, designed by the FCC to ensure ISPs deliver the speeds they're actually promising:

quote: Our Sam Knows scores are like watching a slow-motion train wreck. We need to get in front of this. One thing I think we may need to be prepared to do is just give more ports to Cogent during sweeps month [when FCC results are measured for purposes of the MBA report]. We don’t have to make any promises, we just have to make it work temporarily.

But now, with the FCC poised to strike the killing blow to net neutrality , Charter lawyers are already taking advantage of the repeal to try and kill the AG's inquiry. Ahead of their court appearance this week, the company's lawyers directed the court's attention to the FCC's looming plan , arguing that this federal authority (or in this case apathy) pre-empts any state efforts to hold large, uncompetitive ISPs accountable.

"Of particular relevance here, the Draft Order includes an extensive discussion of the interplay between federal and state law, including with respect to the transparency rule on which Charter has relied in arguing that federal law preempts the Attorney General’s allegations that Time Warner Cable made deceptive claims about its broadband speeds," Charter's lawyers write. "Consistent with the FCC’s statements in prior orders and enforcement advisories, the Draft Order 'conclude[s] that regulation of broadband Internet access service should be governed principally by a uniform set of federal regulations, rather than by a patchwork of separate state and local requirements.'"

Unsurprisingly, Schneiderman's office disagrees.

"Spectrum-TWC failed to maintain enough network capacity in the form of interconnection ports to deliver this promised content to its subscribers without slowdowns, interruptions, and data loss," the AG's office said in an opposition brief.

"It effectively 'throttled' access to Netflix and other content providers by allowing the ports through which its network interconnects with data coming from those providers to degrade, causing slowdowns," noted the brief. "Spectrum-TWC then extracted payments from those content providers as a condition for upgrading the ports As a result, Spectrum-TWC’s subscribers could not reliably access the content they were promised, and instead were subjected to the buffering, slowdowns and other interruptions in service that they had been assured they would not encounter."

If you've been napping, we've discussed how ISPs have convinced the Trump administration and Ajit Pai's FCC to gut nearly all meaningful oversight of some of the least-liked, and least-competitive companies in America. The FCC has made it abundantly clear their goal is to gut FCC authority over large ISPs, shovel any piddly, remaining authority to an FTC that's too ill-equipped and over-extended to tackle it, then ban any states that try and step in and fill what will be fairly monumental consumer protection gaps.

That modus operandi was on proud display when the government and large ISPs like Comcast successfully gutted all broadband consumer privacy protections earlier this year, then promptly moved to scuttle any state attempts to protect your privacy . Again, with neither adult regulatory oversight nor competition to constrain them, the sky will be the limit when it comes to large ISPs' ability to take full advantage of a broken market, whether that comes in the form of net neutrality violations, higher rates, privacy abuses, or all of the above.