The FCC is still more than two weeks away from voting on a proposal to roll back Title II regulation of internet service providers. But Charter Communications is already using the agency’s draft order to defend itself against a suit filed earlier this year by the New York Attorney General’s office.
In early February, New York Attorney General Eric Schneiderman filed suit against Charter, alleging that it promised internet speeds for its acquired Time Warner Cable systems it knew it couldn’t deliver. Schneiderman further accused Charter of throttling Netflix usage.
Charter’s attorneys are set to appear in New York Supreme Court Tuesday and will attempt to get the case dismissed. In advance of that hearing, Charter has filed a brief with the judge (obtained by the Hollywood Reporter) pointing attention to the new rules. The FCC, now under Republican majority, is expected to put forth the draft order rolling back Title II regulations when it voted on Dec. 14.
”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," wrote Charter attorney Christopher Clark, from Latham & Watkins. "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.'”
In its letter to the judge, Charter discussed how the FCC’s proposed “light-touch” regimen dispenses of rules governing paid prioritization, thus damaging Schneiderman’s case regarding Netflix throttling. Charter also pointed to how the new rules limit the amount of influence states will have going forward in such broadband-related disputes.
"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," stated 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. 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.”