Charter Claims NY Lawsuit Over Crappy Broadband Speeds Just An Evil, Netflix 'Cabal'

from the everybody's-to-blame-but-me dept

Early last year, Charter Spectrum was sued by New York State for selling broadband speeds the company knew it couldn't deliver. According to the original complaint (pdf), Charter routinely advertised broadband speeds executives knew weren't attainable -- while simultaneously refusing to upgrade their network to handle added consumer demand (a problem that only got worse in the wake of its merger with Time Warner Cable and Bright House Networks).

Buried in the suit were all manner of interesting allegations, including claims that Charter executives discussed via e-mail how they hoped to manipulate congestion to drive up costs for companies like Netflix (you'll recall this was part of the whole interconnection slowdowns Netflix and companies like Level3 complained about a few years ago). The suit also highlights how Charter gamed the results of a program the FCC has traditionally used to measure real-world broadband speeds using custom-firmware embedded routers in consumer volunteer homes.

Charter has since been trying to tap dance out of the suit by flinging pretty much every legal argument against the wall to see what sticks. Most recently, the company tried to claim that the FCC's recent net neutrality repeal contains language banning states from trying to protect consumers. And while that was certainly the hope of Ajit Pai's FCC, legal experts have argued that the agency's claims don't hold water. More specifically, when the FCC rolled back its Title II authority over ISPs, it also ironically dismantled its legal authority to tell states what to do.

Amusingly, Charter has now shifted its argument to the claim that the entire lawsuiit is somehow part of an unholy cabal orchestrated by Google and Netflix. You might recall that ISPs (and Ajit Pai) have long tried to claim that the entrenched telecom monopolies are innocent daisies, and that net neutrality is simply a conspiracy concocted by Google and Netflix to ruin AT&T, Verizon, Comcast and Charter's livlihood. This narrative has been routinely driven by ISP policy folks despite the fact net neutrality is very much a bipartisan, grassroots consumer welfare issue.

New York State brought in Tim Wu, the Columbia Law Professor who coined the term "net neutrality," to consult on the case. And because Wu had at points talked to both Google and Netflix (who were concerned that Charter was abusing its last-mile monopoly to drive up costs), Charter hopes to use this "unclean hands defense" to try and scuttle the lawsuit by claiming it was a vast conspiracy against Charter:

"Charter's unclean-hands defense is that Plaintiff actively conspired with private parties through Tim Wu (a leading critic of ISP business practices) to investigate and sue Time Warner Cable Inc.," he wrote. "Thus, Plaintiff delegated what should have been an objective law enforcement investigation to third parties whose pecuniary and political interests are adverse to TWC's, and who had preconceived notions of how and why to penalize TWC." The letter then goes on to talk about documents produced by the other side that allegedly show how Wu and third parties "manufacture[d] fraud claims" and how his "co-conspirators boasted of having orchestrated Mr. Wu's work." The names of the individuals who allegedly were in cahoots with Wu include Google's Meredith Whittaker, who in a 2015 email to a colleague, discussed having gotten off the phone with Wu about the NY AG consumer protection complaint and how it would frame interconnection as a consumer harm issue."

Of course since interconnection was a consumer harm issue that's not really substantive or damaging. Charter, a company that routinely uses its own funded think tanks to pollute public discourse and erode accountability is also upset that Wu happened to (gasp) talk to a think tank partially funded by Google:

"Charter is taking the notion of a "cabal" seriously, also pointing to communications with several individuals at the New America Foundation, a Washington, D.C.-based think tank."

Ironically, both Google and Netflix's interest in standing up for consumers on this subject has waned proportionally with their growing power over the years. Still, Netflix and Google had every right to be concerned about what Charter and other ISPs were up to, since they were effectively trying to use their last-mile broadband monopoly to unfairly jack up costs for consumers, content creators, and transit operators alike. That Wu corresponded with companies with legitimate anti-competitive concerns over what broadband monopolies are up to isn't likely to scuttle the case and has the faint whiff of desperation.

Charter's other legal efforts to derail the case haven't gone well so far, and it's unclear whether this latest gambit will work. But it's abundantly clear that Charter is particularly worried about the ramifications of this case, given they appear to have been caught on e-mail routinely lying to the public and regulators. As we've been noting, uncompetitive monopolies like Charter are working together to demolish FTC, FCC, and state authority over their businesses, and they're using every trick in the book to do so.

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Filed Under: broadband speeds, cabal, consumer protection, new york, tim wu

Companies: charter, google, netflix