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

from the foxes-watching-the-henhouse dept

Mon, Jun 25th 2018 10:47am — Karl Bode

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.

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

26 Comments

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Pixelation, 25 Jun 2018 @ 11:07am

"...right to enforce laws 'that prevent fraud, deception and false advertising'"

Fraud, deception and false advertising is what broadband providers want. They've already gotten away with being allowed to call limited, "unlimited".
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Anonymous Coward, 25 Jun 2018 @ 11:32am

Re:
What is the point? The folks here worshiping NN don't care. As long as it all can be used as an excuse to give government more power they are all for it.

We have been staring down a long train of regulatory failures and their only solution is more of the same failure like something is going to change.

The free market was retired in 1934 when the FCC was created and blessed the Monopolies, we have been dealing with problem since then.

Time to kill the FCC's regulatory powers (except standards setting) and return the entire "faux" natural monopolies businesses were granted back to the public and treat the poles and wires as though they were public roadways.

Regulation is NOT the solution it is the problem! Especially the regulations keeping the barrier to entry for new startups high effectively preventing healthy competition. Lets destroy those first and stop squabbling over the crumbs falling from the table!
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Anonymous Coward, 25 Jun 2018 @ 11:44am

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.

Don't be so gloomy Karl, pushing Net Neutrality to the State level might be a good thing. Certainly, some states will pass legislation that support Net Neutrality in name only, but the ISPs will have to comply the rules each state they service. So they'll have two options, set up a person (or team) for each state, or draft internal rules that are compatible with all the states they serve.

So we may see Net Neutrality live yet, simply because it would become more profitable to abide by the rules than to monitor the laws in all 50 states in an attempt to try and evade them.
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ECA (profile), 25 Jun 2018 @ 12:00pm

Whats the problem??
Ever since we got Cell[hones we KNOW they lie, cheat steal..

Ever looked at those Cell coverage maps??
What did it take to KILL off ROAMING CHARGES after you crossed a street??
What about those Calls where you Pay on both sides, Calling and receiving calls??
Do you really think that the Call cost $0.02 per minute?? NOT after all the extra charges, like CONNECTING TO THE OTHER CELLPHONE..

Lets go back farther..
HOW much was your old Wired phone??
How much did they want for Long distance?? which was past 20 miles from your home?? or less.. AND EVEN COST MONEY when you didnt call long distance??
They removed a Tax on phones from the 1800's and teddy Roosevelt.. a few years back..
Asking the corp, What are these charges for?? DIDNT really get a good answer..and still dont.

NONE of these corps installed the original systems..AND THEY HATED UPDATING THINGS unless..WE paid 10 times for it, or It saved them TONS of money..
Wired phone system were NOT 100% coverage, they set them up for 6% usage, meaning that no more then 6% was used at any time, AND WHY many areas had BUSINESS times, where you paid more during the DAY TIME HOURS..
Did you know you could still get METERED SERVICE??
Every call costs money, $3=6 per hour, PLUS FEES..
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Ryunosuke (profile), 25 Jun 2018 @ 12:10pm

Re: Re:
there is a problem with your argument, when it comes to the internet, you cannot have true anarchy, someone, somewhere, has to assert power, dominance, and rule making. No, the problem is that Net Neutrality leveled the playing field for everyone, it gave everyone a fair voice. And seeing that you are so far up the ass with this administration, that Donald Trump can taste your cum, I have to call you for what you are, an authoritarian Nazi (As per Mike Godwin's insistence). And authoritarians, much less Nazis, do not like, in fact, abhor, a level playing field where everyone has a fair voice.

So, good sir, you can take your Nazism, and you can kindly fuck off.
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Anonymous Coward, 25 Jun 2018 @ 1:28pm

Re: Re: Re:

when it comes to the internet, you cannot have true anarchy, someone, somewhere, has to assert power, dominance, and rule making.

Can you explain that? What level of power is a necessity, and why?
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Anonymous Coward, 25 Jun 2018 @ 1:34pm

Re: Whats the problem??

Wired phone system were NOT 100% coverage, they set them up for 6% usage, meaning that no more then 6% was used at any time

That was "hidden". If I wanted to use my line 100% of the time (and I did, for years), they couldn't stop me. When the internet became popular they had to suck it up and redesign their backend to cope with these longer "hold times". They were not permitted to charge their residential customers more or degrade the service.

This is unlike cellphone networks. They're mostly unregulated and you might find your speed capped if you exceed about 20GB/month (coincidentally, only slightly more than one could get over dialup in 1997).
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K`Tetch (profile), 25 Jun 2018 @ 1:39pm

Re: Re: Whats the problem??
6KB/sec (about as fast as you can get with dialup) works out to 16GB in 31 days. (I actually did this once, I also went to Vegas for 2 weeks to film BattleBots, and left my modem dialed up - not so good when it shared a line with my fax machine, and I was to fax my flight details back to the UK there to get a pickup)

Only about 3/4 of the 22GB you're talking about, but yeah, not a huge amount more
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James Burkhardt (profile), 25 Jun 2018 @ 2:19pm

Re: Re: Re: Re:
By the nature of the internet, it requires an actual medium over which it is delivered. Even in wireless transmission setups (4g, Satilite), there is a large amount of infrastructure involved, and wired backhaul is still in play. Someone will own and maintain this equipment. And due to high initial costs with long repayment periods, overbuilding (two or more networks in the same area) is disincentivized. This effect creates what is known as a 'natural monopoly', where market forces discourage competitive operation. In general, infrastructure tends to lead toward that situation. Even in areas once competitive, competition is often killed off. I saw it with DSL Backhaul in San Jose. AT&T bought it all up, sold it to SBC Global, who was one of potentially 2 providers in the area at one point, because of the time to recoup investments in a competitive market.

As such, if left to its own design, broadband would likely devolve into regional monopolies, where the infrastructure is owned solely by the company who sells you service, Its almost already there. Even then, it takes a surprising amount of law/regulation to handle public land, private Property, and right of way use without dispute, but we will ignore those concerns for now. Because of the control over the 'last-mile' connection, broadband monopolies are able to charge far more, provide worse service, and engage in anti-consumer practices. Much like we have to fight governmental abuse, we also have to address corporate abuse that negatively impacts consumers. Because Corporations are big, and consumers are small, we attempt to address the incentives for greed and quick profit via regulation. Like laws written by congress, regulations can be good or bad even within the constraints provided by congress. Good regulations include many food handling laws, while bad regulations include requiring a monastery to be a licensed funeral home to sell handmade caskets. Thats why the details of the NN order matter.

In the end, we don't know the answer to how much is the right amount question. Its not a question that has one easy answer. You have to actually look at the regulation and *gasp* think about what the regulation wants to do, what it does, how it does it, and decide both if it accomplishes its goal and if there was an easier way to do it. The first NN order was the 'easier' way, but failed because Title I did not provide that authority. But the 2015 NN order id have that authority and barred the monopolies from some massive abuses of that power, abuses that had already occurred, while forbearing most of Title II, providing them little to twist into protectionist measures. It was carefully crafted. That is why I supported it. Ajit Pai's order instead was so poorly crafted, in it's attempts to prevent the FCC from being able to do anything to prevent abuse, it might have actually prevented the FCC from doing what they wanted it to do, prevent states from stepping in. It fails on every level to accomplish its objectives long term, and went so far beyond minimal that it rewrote the telecommunications act.
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Anonymous Coward, 25 Jun 2018 @ 2:34pm

We also need a government investigation of Ajit Pai's financial situation.

The guy is OBVIOUSLY and very illegally taking money from ISPs to do whatever the hell they want against the interests of the public AND the United States itself.

Full formal investigation in which Mr Pai has to turn over ALL bank records and financial statements and we'll see how he can "somehow" afford cars greater than his annual salary (paid in cash) and houses (again paid in cash) equal in value to DECADES of his official salary.
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Anonymous Anonymous Coward (profile), 25 Jun 2018 @ 3:17pm

Re: Re: Re: Re: Re:
Sounds like an argument to make the infrastructure a utility giving each endpoint the best possible connection, and providers ancillary to that, and regulated but not by the FCC. It is just infrastructure, not communications. The infrastructure profit would come, over time, not next quarter.

Those providers should be able to compete for each and every end connection, independently, not just by area, or region, or building.

Well done. I never thought I would hear that from you.

That is you, isn't it?
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Anonymous Coward, 25 Jun 2018 @ 3:32pm

Re: Re:
I hear Somolia has no regulations. Why don’t you move there and put your money where your extremely dumb mouth is?
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That One Guy (profile), 25 Jun 2018 @ 4:03pm

'Whenever you care to retire, we've got a job waiting...'
I actually wouldn't be terribly surprised if he hasn't received much or even any 'official' payment from them so far.

Which is not to say I don't think he's been bought off, at this point I think both he and they know that with all he's done for them any time he wants to quit or 'retire' he could walk into any of their offices and be hired on the spot at very generous terms, and that's almost as good as money now and much harder to crack down on.
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Anonymous Coward, 25 Jun 2018 @ 6:17pm

Well, Richard Bennett's not going to like this much at all, is he?
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Ryunosuke (profile), 25 Jun 2018 @ 6:38pm

Re: Re: Re:
what i meant was that absent federal regulation, either state regulation steps in, and absent that ISP's steps in, but the truth is someone is in charge of how the isp's operate, including the isp's themselves.
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Sharur, 25 Jun 2018 @ 7:01pm

Re: Re: Re: Somolia
This is a stupid and asinine comment: Somalia has plenty of regulations, often contradicting and conflicting, issued by a myriad collection of different governments, often fighting against one another, who can and do use lethal force in enforcing them.

Anarchy doesn't mean there are no rules. Anarchy means a lack of central power structure, so anyone with any power (including the ability to inflict violence) can try to attempt to exercise it.
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PaulT (profile), 26 Jun 2018 @ 1:19am

Re: Re:
"The folks here worshiping NN don't care. As long as it all can be used as an excuse to give government more power they are all for it."

So, you *still* don't have a clue what NN actually is?

"Regulation is NOT the solution it is the problem! "

Except where it's effective. I got a nice message from my ISP yesterday to let me know that they upgraded my 300Mb fibre optic service to 600Mb - free of charge (probably for less than you're paying for an inferior service, too). Just a rolling upgrade, although I didn't get chance to test it last night. Yet, if they fail me in any way, I can either call the regulators or switch to one of the many competitors available in my area.

What a shame you oppose this for your own country.
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CounterAgent, 26 Jun 2018 @ 5:02am

Another way to look at this....
...Net Neutrality wasn't actually necessary to protect us from fraudulent service providers. We had it within us all along, and could sue the providers when they didn't provide the services we paid for.
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PaulT (profile), 26 Jun 2018 @ 5:57am

Re: Another way to look at this....
The problem with net neutrality protections being removed is not that you won't get the service you paid for, it's that ISPs will use their positions to make life very difficult for competitors in the content space - and there's not much you can really do about it if they're not breaking any law, since they were just repealed.
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Anonymous Coward, 26 Jun 2018 @ 8:08am

Re: Another way to look at this....
Actually, that's not entirely true. ISP terms of use are written such that it says they can change the service at any time and you have no say in the matter. So what you initially signed up for could change to something you don't want and you can't sue them because you agreed to the terms that state they can change it to whatever they want, whenever they want.

So no, we didn't have it within us all along. What we did have within us was to not vote an idiot into office who appointed another idiot/corporate sellout to head the FCC.
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Chip, 26 Jun 2018 @ 9:40am

Re: Re: Re:
Regulations are BAD! I bet in "Your" country they DON'T even "let" you eat Leaded "paint" chips!

Every NATION eats the Paint chips it "deserves"!
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Anonymous Coward, 26 Jun 2018 @ 12:10pm

Re: Re: Re: Re:

Every NATION eats the Paint chips it "deserves"!

What the hell does this even mean? I've seen you post this for months now and I still don't get it.
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PaulT (profile), 27 Jun 2018 @ 1:14am

Re: Re: Re: Re: Re:
One of the regular trolls banged on a lot about nations getting the government they deserved. Which, is idiotic in many ways, and a nice way to absolve any responsibility to help those in crisis in other countries, but he never seemed to get the reality of the problems.

Chip is a parody account who throws back some of the trolls' regular inane sayings.
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Anonymous Coward, 27 Jun 2018 @ 7:52am

Re: Re: Re: Re: Re: Re:
Ah, thanks for clearing that up.
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Wendy Cockcroft, 28 Jun 2018 @ 5:43am

Re: Re: Re: Re: Somolia
Confirmed correct. It also doesn't mean "lawlessness," just that there's no centralised authority to enforce the rule of law, which ends up being entirely devolved to local communities.
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Wendy Cockcroft, 28 Jun 2018 @ 5:45am

Re: 'Whenever you care to retire, we've got a job waiting...'
I dunno, TOG; making it illegal to take a job with the companies you've been regulating for at least ten years might put a damper on anti-consumer activities, don't you think?
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