Charter Uses Net Neutrality Repeal To Claim States Can't Hold It Accountable For Shoddy Service, Failed Promises

from the zero-accountability dept

Thu, May 17th 2018 6:20am — Karl Bode

While people remain exclusively fixated on the telecom industry's attacks on net neutrality, the reality is companies like Comcast, Charter, AT&T and Verizon are busy trying to eliminate nearly all federal and state oversight of their businesses. And while deregulation has its uses in healthy markets as part of an effort to protect innovation, you may have noticed that the telecom market isn't particularly healthy. As such, the end result of eliminating most meaningful regulatory oversight without organic market pressure in place is only likely to make existing problems worse.

This battle is getting particularly heated on the state level. After the Trump administration dismantled net neutrality and consumer privacy protections, states began flexing their muscle and attempting to pass their own privacy and net neutrality rules. ISP lobbyists, in turn, tried to head those efforts off at the pass by lobbying the FCC to include (legally untested) language in its net neutrality repeal "pre-empting" states from being able to protect broadband consumers in the wake of federal apathy.

And in the wake of the net neutrality repeal, companies like Charter (Spectrum) are trying to claim that states have no legal authority to hold them accountable for failed promises, slow speeds, or much of anything else.

For example, Charter is already trying to use the FCC net neutrality language to wiggle out of a lawsuit accusing it of failing to deliver advertised speeds. And the New York Public Service Commission also recently stated it found that Charter has been effectively lying to regulators about meeting conditions affixed to its $89 billion acquisition of Time Warner Cable and Bright House Networks. As part of the deal, Charter was supposed to deploy broadband to a set number of additional homes and businesses, but regulators found (pdf) several instances where Charter actively misled regulators.

Last week Charter replied to these allegations by again claiming that states have no authority over them. As part of that effort the company is already citing the FCC's pre-emption language buried in its net neutrality repeal:

"The Commission does not have the authority to compel broadband providers to offer service to particular customers at particular speeds or at particular locations, or to establish any other obligations in a cable television and telecommunications service merger related to the provision of broadband services. Indeed, it has been established for years that Internet access services are interstate, and accordingly subject to exclusive federal jurisdiction.

The FCC has made abundantly clear that states may not impose “any so-called ‘economic’ or ‘public utility-type’ regulation[]” on broadband services and that federal law flatly preempts such requirements. Requiring a provider to expand the geographical range in which it offers broadband services and to offer it at specific speeds—as the Expansion Condition does—is a quintessential public utility obligation that could never lawfully be imposed by a state, as such a requirement would blatantly violate federal law.

There's several things wrong with this claim. One, NY State and the NY PSC absolutely does have authority over Charter -- because this is a merger agreement signed off on by the company that also currently holds a franchise agreement in the state. Two, the FCC's pre-emption effort was already on shaky and untested legal ground. But as Stanford Law School Professor Barbara van Schewick recently pointed out, ironically when the Ajit Pai's FCC rolled back Title II classification of ISPs, it also abdicated its own authority allowing it to tell states what they can do:

"While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid. According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.

But by re-classifying ISPs as information services under Title I of the Communications Act and re-interpreting Section 706 of the Telecommunications Act as a mission statement rather than an independent grant of authority, the FCC has deliberately removed all of its sources of authority that would allow it to adopt net neutrality protections. The FCC’s Order is explicit on this point. Since the FCC’s 2017 Order removed the agency’s authority to adopt net neutrality protections, it doesn’t have authority to prevent the states from doing so, either."

Still, it will take years to hammer this all out in the courts, and in the interim efforts to erode oversight on numerous other fronts (as we saw on net neutrality and privacy) has so far been a smashing success. As we've already noted several times, cable operators like Charter are enjoying larger broadband monopolies than ever before thanks to telcos that have no interest in upgrading aging DSL lines at scale. If you really enjoy the high prices and comical shitshow that passes for cable customer service, by all means let's make sure nobody on the state or federal level can ever hold them accountable.

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Filed Under: fcc, net neutrality, new york, oversight, state laws
Companies: charter

27 Comments

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Reader Comments

The First Word

“

I see this as a good development.

As Techdirt also pointed out in earlier NN articles, we expected that ISPs will lay low for at least a few months, if not a few years, after the repeal, to weaken the NN advocates' position.

However, here we see an ISP abusing the NN repeal to get away from obligations it previously agreed upon, screw over the people, and flip the bird at the authorities... and there's still a few weeks before the rules go into effect.

Essentially, this move by Charter is a gift to NN advocates, giving them an actual, clear-cut example of shitty ISP behavior enabled by the NN repeal. It's not Comcast-sues-FCC-forcing-Title-II level of screwup, but it's a good effort.

—ryuugami

”

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Anonymous Coward, 17 May 2018 @ 6:50am

Re: claiming that states have no authority over them
Even if that were so, the state still has authority over the right of way. So if the state so chooses, it could simply bill Charter for a billion dollars worth of rent on publicly owned facilities and land, and deduct for those areas that meet the states broadband standards. Which is probably the better way to go anyway.
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ryuugami, 17 May 2018 @ 7:07am

I see this as a good development.

As Techdirt also pointed out in earlier NN articles, we expected that ISPs will lay low for at least a few months, if not a few years, after the repeal, to weaken the NN advocates' position.

However, here we see an ISP abusing the NN repeal to get away from obligations it previously agreed upon, screw over the people, and flip the bird at the authorities... and there's still a few weeks before the rules go into effect.

Essentially, this move by Charter is a gift to NN advocates, giving them an actual, clear-cut example of shitty ISP behavior enabled by the NN repeal. It's not Comcast-sues-FCC-forcing-Title-II level of screwup, but it's a good effort.
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Ryunosuke (profile), 17 May 2018 @ 7:26am

Re:
I'd say that AT&T would be a bigger gift. With new reports coming out (HT: Karl Bode)

It seems that AT&T (and by extension the entire ISP industry.) seeks to have themselves fully and legally deregulated.

Ya, it's not a good week for ISP's so far. And that's good.
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Anonymous Coward, 17 May 2018 @ 7:35am

"Charter Uses Net Neutrality Repeal To Claim States Can't Hold It Accountable For Shoddy Service, Failed Promises"

hahahahaha - Their customers will still cut the cord regardless of what the Charter idiots think and there is nothing Charter can do about.
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Berenerd (profile), 17 May 2018 @ 7:47am

States do require you to get permits to operate a business in their state, even in NH where my parents had their Doll business. Revoke the license and Charter can't collect fees anymore. Hand the lines over to the towns and smaller ISPs that want to support the improvements.
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Anonymous Coward, 17 May 2018 @ 7:58am

Re: Re: claiming that states have no authority over them

So if the state so chooses, it could simply bill Charter for a billion dollars worth of rent on publicly owned facilities and land, and deduct for those areas that meet the states broadband standards.

Not likely. The state does have an obligation to manage this fairly. They can't charge different rates depending on how much they like the company.
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Anonymous Coward, 17 May 2018 @ 8:01am

So, Richard... care to tell us how this is a better development and supportive of net neutrality repeal?

I don't think I'll hold my breath.
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Anonymous Coward, 17 May 2018 @ 8:10am

Re:
Unless Charter is your only option for decent internet.
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Anonymous Coward, 17 May 2018 @ 8:47am

Re: Re:
I would move.
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Bruce C., 17 May 2018 @ 8:52am

Not to mention...
Even if the FCC abdication and pre-emption are both legal, the suit against charter is based on their agreement to take certain actions in order to obtain consent to the acquisition of Time-Warner and Brighthouse. It isn't based on net neutrality authority, it's based on anti-trust authority.
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Anonymous Coward, 17 May 2018 @ 8:56am

Re: Re: Re:
Lucky you, that you can afford to do so.
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Ninja (profile), 17 May 2018 @ 9:01am

Well, it's a pretty messed up shit show. The bright side is that this is getting mainstream attention and showing the true colors of the telcos. Sure there will be the dumbasses that will always cheer for their abusers but overall I see the US will get out of this mess better than when it started with the latest FCC head.

In any case, history will not remember Ajit Pai fondly.
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Anonymous Coward, 17 May 2018 @ 9:08am

Re: Re:
Is there an alternate source? DSLReports has been blocking anonymous users for years.
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Gary (profile), 17 May 2018 @ 9:08am

Re: Re: Re:
Move to a different state? Or just a different country with better regulations?
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Anonymous Coward, 17 May 2018 @ 9:15am

Re: Re: Re:
Blocking your comments or not letting you read it?
Because I have been reading it for years without any sort of account, sign in, whatever.
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Anonymous Coward, 17 May 2018 @ 9:16am

Re: Re: Re: Re:
Whatever it takes.
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This comment has been flagged by the community. Click here to show it

Anonymous Coward, 17 May 2018 @ 9:44am

Just one word demolishes your notions: FTC and "interstate commerce".
You just re-wrote and blathered in blissful ignorance of -- as the fanboys -- over-arching totally settled law.

The FCC has already stated that enforcement now falls to F**T**C. States are not free to just "regulate" however want.
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Anonymous Coward, 17 May 2018 @ 11:42am

Re: Just one word demolishes your notions: FTC and "interstate commerce".
Really. Has this been tested in court? If so, which one(s)?

I seriously doubt it, but it could've happened - right? Otherwise, why would you make such a statement ... are you a lawyer with experience in the area? I doubt that also.

Just talkin out yer ass huh.
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That One Guy (profile), 17 May 2018 @ 11:50am

Re: Re: Re: Re: Re:
In which case as one of the AC's above noted, lucky you for being rich enough that packing up and moving simply to get better internet is a viable choice, most people do not have that luxury.
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Anonymous Coward, 17 May 2018 @ 12:55pm

Re: Re: Re: Re: Re: Re:
Score another round for the victim mentality. Gotta swell those ranks, amiright?
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Anonymous Coward, 17 May 2018 @ 2:36pm

Re: Re: Re: Re: Re: Re:
Yeah, I understand that. Renting sucks and so does moving. I am not rich.
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Whoever, 17 May 2018 @ 2:45pm

Power to prevent states from regulating?
Doesn't the recent decision on gambling apply here? The Federal government can only regulate or not regulate. It can't commandeer the states' actions on net neutrality.
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That One Guy (profile), 17 May 2018 @ 3:16pm

Re: Re: Re: Re: Re: Re: Re:
Renting, moving(possibly to an entirely different state and all the fun that involves), finding a new job(potentially several new jobs if in a family with multiple people working) and by extension going without during the process of moving...

Yeah, good for you that you can afford that, but like I said, most people can't just pack up and move for something like that, which is one of the main reasons why companies like Charter feel safe in gouging their customers, because they know it's either them or do without.
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That One Guy (profile), 17 May 2018 @ 3:17pm

Re: Re: Re: Re: Re: Re: Re:
That was the best you could come up with? Spinning pointing out that most people can't just pack up and move simply because their internet service sucks as 'victim mentality'?

Enjoy your funny vote.
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Anonymous Coward, 17 May 2018 @ 4:56pm

Re: Just one word demolishes your notions: FTC and "interstate commerce".
This is literally just wrong.
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Anonymous Coward, 17 May 2018 @ 7:43pm

Re: Re: Re: Re:
It blocks Tor users, even from reading articles. There's some mention of a Javascript Captcha, but I'm neither going to enable Javascript nor solve a Captcha to read an article.
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