Sen. Kennedy (R-La.)

Senator John Kennedy (R-La.) today introduced a companion bill that broadly copies an industry-favoring, fake net neutrality protection bill introduced last year in the U.S. House of Representatives by Rep. Marsha Blackburn (R-Tenn.).

The Open Internet Preservation Act is essentially the Senate version of Blackburn’s House bill, bringing along all the major flaws and industry favoritism one expects from Blackburn, a notorious defender of large telephone and cable companies and a favorite target for their campaign contributions.

Blackburn was naturally delighted.

“Sen. Kennedy brings leadership and focus to this discussion of preserving a free and open internet,” Blackburn said in a statement. ” I appreciate his work and his attention to this issue.  Title II 1930s era regulation was a heavy-handed approach that would stifle innovation and investment. This legislation will go a long way toward achieving the goal of protecting consumers.”

Kennedy made sweeping claims about the power of his bill to protect consumers — power not actually in his bill.

“Some cable companies and content providers aren’t going to be happy with this bill because it prohibits them from blocking and throttling web content,” Kennedy said in a statement. “They won’t be able to micromanage your web surfing or punish you for downloading 50 movies each month. This bill strikes a compromise that benefits the consumer.”

Except it won’t. We expect no cable company will oppose a measure that is based largely on the recommendations from the cable industry itself. Nothing in the bill would prohibit Comcast, AT&T, or other companies from “punishing” you for downloading 50 movies each month with a much higher bill as a result of exceeding your data cap and facing punitive overlimit fees.

Read Stop the Cap!’s detailed analysis of Rep. Marsha Blackburn’s net neutrality bill.

Even Kennedy admits his bill isn’t perfect, and considering it is based on a bill introduced by Rep. Blackburn that we analyzed last year, Kennedy is being modest.

“If the Democrats are serious about this issue and finding a permanent solution, then they should come to the table and work with me and Rep. Blackburn on these bills,” said Kennedy. “Does this bill resolve every issue in the net neutrality debate? No, it doesn’t. It’s not a silver bullet. But it’s a good start.”

It’s actually a very bad start, in our view. The industry would like to declare the net neutrality issue ‘settled’ with the passage of a bill it effectively wrote itself.

We urge readers to vehemently oppose both measures, which represent net neutrality in name-only. The best way to find a permanent solution for preserving real net neutrality will come at the next election, when voters can replace lawmakers that represent the interests of big telecom companies over those of their constituents. Allowing either fake net neutrality measure to proceed will make it exponentially more difficult to raise the issue in the future.

The country’s largest cable internet service provider needed help from an app developer in Portland, Ore. to let it know its broadband pipes were full and to do something about it.

Comcast customers were complaining about slow downloads from the Panic website and the company’s own workers were saying largely the same thing when attempting to remotely connect to the company’s servers from home.

Because Panic’s web servers have just a single connection to the internet via Cogent, it would be a simple matter to track down where the traffic bottleneck was occurring, assuming there was one. The company asked for volunteers to run a test transferring 20MB of data first from Panic’s server and then again from a control server hosted with Linode, a popular and well-respected hosting company.

The results were pretty stunning.

With speeds often around only 356.3kbps for Comcast customers connecting to Panic, something was definitely up. It also explained why employees had a rough time connecting to the company’s server as well — Panic’s workers are based in Portland, Ore., where Comcast is used by almost every employee.

The slowdowns were not related to the time of day and because the problem persisted for weeks, it wasn’t a temporary technical fault. Panic’s blog picks up the story about what is behind all this:

Peering.

Major internet pipes, like Cogent, have peering agreements with network providers, like Comcast. These companies need each other — Cogent can’t exist if their network doesn’t go all the way to the end user, and Comcast can’t exist if they can’t send their customer’s data all over the world. One core tenet of peering is that it is “settlement-free” — neither party pays the other party to exchange their traffic. Instead, each party generates revenue from their customers. Cogent generates revenue from us. Comcast generates revenue from us at home. Everyone wins, right?

After a quick Google session, I learned that Cogent and Comcast have quite a storied history. This history started when Cogent started delivering a great deal of video content to Comcast customers… content from Netflix. and suddenly, the “peering pipe” that connects Cogent and Comcast filled up and slowed dramatically down.

Normally when these peering pipes “fill up”, more capacity is added between the two companies. But, if you believe Cogent’s side of the story, Comcast simply decided not to play ball — and refused to add any additional bandwidth unless Cogent paid them. In other words, Comcast didn’t like being paid nothing to deliver Netflix traffic, which competes with its own TV and streaming offerings. This Ars Technica article covers it well. (How did Netflix solve this problem in 2014? Netflix entered into a business agreement to pay Comcast directly. And suddenly, more peering bandwidth opened up between Comcast and Cogent, like magic.)

We felt certain history was repeating itself: the peering connection between Comcast and Cogent was once again saturated. Cogent said their hands were tied. What now?

In addition to giving the internet public policy community new evidence that peering fights leaving customers stuck in the middle might be heating up once again. It also suggests if Comcast was unaware of the problem, it does not reflect well on the cable company to wait weeks until a customer reports such a serious slowdown before fixing it.

The folks at Panic took a chance and reported the problem to Comcast, bypassing the usual customer support route in favor of a corporate contact who listed a direct email address on the company’s website. Comcast took the request seriously and eventually responded, “give us one to two weeks, and if you re-run your test I think you’ll be happy with the results.”

Indeed, the problem was fixed. The folks at Panic say according to Comcast, two primary changes were made:

1. Comcast added more capacity for Cogent traffic. (As suspected, the pipe was full.)
2. Cogent made some unspecified changes to their traffic engineering.

The folks at Panic and their users are happy that the problem is fixed, but some questions remain:

1. Is Comcast intentionally throttling web traffic in an attempt to extract a more favorable peering agreement with Cogent?
2. How could Comcast not know this particular connection was hopelessly over-capacity for several weeks, leaving customers to deal with heavily throttled traffic.

“While this story amazingly had a happy ending, I’m not looking forward to the next time we’re stuck in the middle of a peering dispute between two companies,” wrote Cabel. “It feels absolutely inevitable, all the more so now that net neutrality is gone. Here’s hoping the next time it happens, the responsible party is as responsive as Comcast was this time.”

Panic explains internet slowdowns resulting from peering disputes in this (3:30) video.

FCC Chairman Ajit Pai is under investigation by the Inspector General of the Federal Communications Commission after being alleged of improperly taking actions to benefit Sinclair Broadcast Group, while one of his colleagues, Commissioner Michael O’Rielly, is the subject of an ethics complaint after allegedly violating the Hatch Act by openly advocating for the re-election of President Donald Trump.

Pai’s actions as head of the FCC under the Trump Administration have been under scrutiny by some members of Congress since last fall. Ranking Member of the House Energy & Commerce Committee, Rep. Frank Pallone, Jr. (D-N.J.) and Ranking Member of the House Committee on Oversight and Government Reform, Elijah Cummings (D-Md.) signed a joint letter addressed to FCC Inspector General James Hunt last November requesting an investigation after they claimed Chairman Pai “has repeatedly refused to adequately respond to Congressional inquiries” on the matter.

Pallone and Cummings noted press reports that Pai specifically timed certain FCC regulatory actions to directly benefit Sinclair, seen as politically friendly to the Trump Administration and Republicans. As evidence, they included multiple examples of suspiciously timed regulatory changes that seemed to coincide with Sinclair’s business deals and the company’s lobbying efforts in Washington:

Sinclair-Bonten License Transfer Application

Chairman Pai rescinded a guidance in February (2017), effectively loosening the scrutiny the FCC’s staff applied to deals that could skirt local TV ownership restrictions by using a sharing agreement (effectively allowing Sinclair to control stations owned by another company). The FCC approved a deal three months later where Sinclair used several of these sharing agreements, potentially to circumvent the rules.

Pai

Reinstatement of the UHF Discount Rule

Press reports indicated in March, 2017, Sinclair was in talks with Tribune Media Company about a potential merger, but analysts remarked the deal would likely require the FCC to reinstate an outdated rule called the “UHF discount.” This rule, left over from the days of analog television and finally rescinded in 2016, did not count UHF television stations above Channel 13 the same as VHF stations (Chs. 2-13) when defining how many TV stations a single company can own. The theory behind the discount was that analog UHF reception was more difficult and, as a result, such stations were less valuable than their lower channel counterparts. But digital television largely erased that distinction because UHF reception has improved, TV stations can be “mapped” by digital tuners to any channel number, and, in some areas, digital VHF stations suffer more reception problems than UHF stations do.

Chairman Pai suddenly announced his plan to reinstate the outdated UHF discount rule the same month Sinclair began talks with Tribune. Sinclair announced its proposed acquisition of Tribune’s TV stations just two weeks after the FCC reinstated the UHF discount. If approved, the transaction would solidify Sinclair as the country’s largest TV group owner with a potential to reach 70% of the country, which is far in excess of the current 39% limit.

LG’s Ultra High Definition (UHD) televisions support ATSC 3.0, and were demonstrated at the 2017 Olympic Games in PyeongChang, South Korea.

Next Gen TV (ATSC 3.0)

Sinclair has been one of the main proponents of the ATSC 3,0 (also known as “Next Gen TV”) transition, and its subsidiary holds patents that reports indicate could provide billions of dollars in licensing fees to Sinclair. Chairman Pai announced during his first full month in office a proposal to allow the TV industry to accelerate a transition to the new standard.

Since that time, the FCC has pushed ATSC 3.0 forward and the new technology has begun to be tested in the United States. Some consumer groups worry the new technology will be costly if consumers cannot afford or find converter boxes for existing televisions, although ATSC 3.0 proponents promise stations will continue to broadcast a Standard Definition version of existing TV stations for at least five years after the transition begins.

New televisions supporting the standard have already gone on sale in South Korea at prices ranging from around $900-$1,500US. The government is subsidizing TV station owners a minimum of $1.75 billion as part of a TV station repack that will precede the introduction of ATSC 3.0. But no subsidies will be given to consumers. Those buying ATSC 3.0 tuners or televisions will do so out of their own pocket if they wish to continue watching over-the-air stations. Sinclair will also get a royalty payment for each new television or tuner sold.

Main Studio Rule

The FCC voted last October to eliminate rules requiring a local broadcast station to maintain a physical presence in the market in which it operates. This means a station could deliver programming to a station’s transmitter from another city, with no local programming or personnel. This move would make Sinclair’s potential merger even more profitable by eliminating many of the costs of maintaining local stations, particularly labor and news-gathering costs.

Broadcast Ownership Rules

Chairman Pai plans to significantly change the existing broadcast media ownership limits. This would clear away virtually all remaining obstacles to Sinclair increasing its reach beyond the Tribune merger proposal and acquire still more television stations. Sinclair has carefully prepared for this eventuality by contractually obligating the new owner(s) of stations Sinclair is required to sell to remain under whatever ownership cap still exists to sell those stations back to Sinclair if and when Sinclair requests it.

According to the two Democrats, “all of these actions — when taken in context with reported meetings between the Trump Administration, Sinclair, and Chairman Pai’s office — have raised serious concerns about whether Pai’s actions comply with the FCC’s mandate to be independent.”

Pai’s critics are also concerned about the increased partisanship of the chairman and another Republican FCC Commissioner Michael O’Rielly. Both turned up at the Conservative Political Action Conference (CPAC) in Maryland last week.

The NRA’s “Charlton Heston Courage Under Fire Award” for Ajit Pai’s Assassination of Net Neutrality Includes a Kentucky Long Gun

Pai at CPAC

When Pai arrived on stage to deliver a short speech, Dan Schneider, executive director of the American Conservative Union, which sponsors CPAC, took the microphone to introduce the FCC chairman.

“Ajit Pai is the most courageous, heroic person that I know,” Schneider said. “He has received countless death threats. His property has been invaded by the George Soros crowd. He has a family, and his family has been abused in different ways. Chairman Pai, thank you for everything you’ve done.”

He then turned the podium over to Carolyn Meadows, second vice president of the National Rifle Association, who surprised Pai with the NRA’s “Charlton Heston Courage Under Fire Award,” a rare honor given only to firebrand conservatives willing to push through their political agenda regardless of criticism or voter backlash. Pai was being recognized for ignoring the comments of tens of millions of supporters of net neutrality and pushing through a complete repeal of the open internet rules, regardless of the possible political consequences.

Previous award winners include controversial former Milwaukee Sheriff David A. Clarke Jr., Undersecretary John Bolton, who once threw a tape dispenser at a female government contractor and chased her down a Moscow hotel hallway, conservative talk show host Rush Limbaugh, and Vice President Mike Pence.

The honor included a “Kentucky hand-made long gun,” said Meadows, who promised to store the gun for Pai at an NRA museum. That prompted a Tweet from the former director of the Office of Government Ethics, Walter Shaub, claiming Pai’s gun award likely violated federal ethics rules.

Anyone care to explain to me why the FCC thinks that the ethics rules allow Ajit Pai to accept the gift of an expensive handmade gun from the NRA, an entity whose interests he can affect (and has affected) by the performance of his official duties? Am I missing something? https://t.co/S6ocyWIV7H

— Walter Shaub (@waltshaub) February 24, 2018

As criticism of the FCC chairman grew, Pai’s office sent letters on Thursday to both the NRA and the American Conservative Union declining the handmade weapon. Pai indirectly blamed the NRA, claiming his staff has asked at the event that the gun not be given to him. But the NRA came up with its own compromise, storing the gun until Pai left office.

“As you know, once my staff became aware of what was happening, they asked backstage that the musket not be presented to me to ensure that this could be first discussed with and vetted by career ethics attorneys in the FCC’s Office of General Counsel,” Pai wrote, an FCC source told Politico. “Therefore, upon their counsel, I must respectfully decline the award. I have also been advised by the FCC’s career ethics attorneys that I would not be able to accept the award upon my departure from government service.”

FCC Commissioner Michael O’Rielly Calls for the Re-Election of President Trump and Violates the Hatch Act

O’Rielly

At the same CPAC event, FCC Commissioner Michael O’Rielly also managed to find himself the subject of controversy in response to a question.

Q. What can the FCC do to stop the constant “ping pong” of issues, like net neutrality, every time the party in power changes in the nation’s capital?
A. “I think what we can do is make sure as conservatives that we elect good people to both the House, Senate and make sure that President Trump gets re-elected,” O’Rielly answered.

Experts claim O’Rielly violated the Hatch Act, a law that prohibits employees in the executive branch of the federal government, except the president, vice-president, and certain designated high-level officials from engaging in certain forms of political activity. Telling the public to re-elect President Trump counts as a violation.

The Office of Special Counsel (OSC) already warned government officials so steer clear of President Trump’s already announced 2020 re-election campaign. In short, the Hatch Act “prohibits federal employees, while on duty or in the workplace, from expressly advocating for or against his reelection in 2020,” the OSC wrote in a guidance memo distributed to all federal agencies.

American Oversight, a group that monitors ethics issues in Washington, filed a formal complaint with the OSC against O’Rielly on Feb. 23:

“American Oversight respectfully requests that the Office of Special Counsel (“OSC”) immediately open an investigation into whether Michael O’Rielly, Commissioner on the Federal Communications Commission (FCC), violated the Hatch Act during an appearance at the Conservative Political Action Conference today, February 23, 2018. We do not believe this presents a hard question.

“Appearing in his capacity as a commissioner of the FCC, Commissioner O’Rielly improperly engaged in partisan political activity by expressly advocating for the re-election of Donald Trump
and exhorting the crowd to “elect good people to the House [and] the Senate.” Specifically, during the panel discussion, Commissioner O’Reilly delivered the following remarks:

“‘I think what we can do is make sure as conservatives that we elect good people to both the House, the Senate, and make sure that President Trump gets re-elected. But there’s another thing you can do. We’re going to have a fight over the Obama internet rules in the next couple months in the U.S. Senate. And that’s going to matter and that vote matters, and so making sure people take the right course on that, really does affect what policies we’re able to keep in place moving forward. So we can certainly use everyone’s help along those lines.’

“These remarks, made in Commissioner O’Rielly’s capacity as a commissioner at the FCC, constitute prohibited partisan political activity under the Hatch Act. As you know, the Hatch Act generally prohibits federal officials from engaging in partisan political activity while on duty. Advocating for the election of a candidate in a partisan election is the classic example of such prohibited activity.”

“The FCC controls our airwaves, the internet, and so many of the things we interact with every single day,” said Austin Evers, the executive director of American Oversight. “It should be independent, it should not be partisan, and bottom line, it should obey the law.”

Another group, Citizens for Responsibility and Ethics in Washington (CREW) is also reviewing the event.

“This certainly raises Hatch Act issues,” spokesman Jordan Libowitz told the Chicago Tribune. “[O’Rielly] is prohibited from taking part in partisan political activity using his official title or position.”

“The Young Turks” explain Ajit Pai’s attack on net neutrality and the award the NRA gave him for killing it. (7:16)

AT&T’s attempt to avoid oversight and enforcement of consumer protection laws by the Federal Trade Commission (FTC) failed in a federal appeals court Monday, overturning a 2016 decision that agreed with AT&T the FTC could not oversee or punish AT&T for its business practices.

In a unanimous 11-0 decision by the Ninth Circuit Court of Appeals, the court found AT&T’s interpretation of a law it said gave the Federal Communications Commission exclusive authority to regulate and oversee “common carrier” telecom companies was overly broad and based on a misinterpretation of the law. The decision means the FTC will continue to pursue AT&T in court to secure relief for AT&T’s wireless customers that the FTC claims were misled by AT&T’s unlimited data plan that was not truly unlimited.

“The phrase ‘common carriers subject to the acts to regulate commerce’ thus provides immunity from FTC regulation only to the extent that a common carrier is engaging in common-carrier services,” the court ruled Monday. In laymen’s terms, the judges found that the FCC does have the regulatory authority to oversee common carrier services like basic telephone service, but the law does not prevent other government agencies like the FTC to oversee AT&T’s conduct in non common-carrier services.

The FTC and the FCC both argued that allowing AT&T and the 2016 lower court opinion to stand would create a regulatory loophole through which virtually any corporation with even the slightest ownership stake in a common carrier telecommunications company could escape all oversight and enforcement of consumer protection laws.

The dispute began in 2014, when the FTC sued AT&T in court for intentionally throttling wireless internet speeds of millions of AT&T customers hanging on to their legacy unlimited data plans.

The FTC’s complaint alleged that the company failed to adequately disclose to its customers on unlimited data plans that, if they reached a certain amount of data use in a given billing cycle, AT&T reduced – or “throttled” – their data speeds to the point that many common mobile phone applications – like web browsing, GPS navigation and watching streaming video –  become difficult or nearly impossible to use.

“AT&T promised its customers ‘unlimited’ data, and in many instances, it has failed to deliver on that promise,” said former FTC Chairwoman Edith Ramirez in 2014. “The issue here is simple: ‘unlimited’ means unlimited.”

According to the FTC’s complaint, AT&T’s marketing materials emphasized the “unlimited” amount of data that would be available to consumers who signed up for its unlimited plans. The complaint alleged that, even as unlimited plan consumers renewed their contracts, the company still failed to inform them of the throttling program. When customers canceled their contracts after being throttled, AT&T charged those customers early termination fees, which typically amount to hundreds of dollars.

The complaint accused AT&T of violating the FTC Act by changing the terms of customers’ unlimited data plans while those customers were still under contract, and by failing to adequately disclose the nature of the throttling program to consumers who renewed their unlimited data plans.

AT&T responded in court asking the case be dismissed, arguing that the FTC could not bring a case against AT&T because, as a common carrier, only the FCC has jurisdiction over the company.

The case was largely decided on whether Congress intended to exempt common carrier companies from FTC oversight based on their “status” or their “activities.” AT&T argued the law clearly gave companies deemed to be common carriers a blanket exemption from FTC oversight. The FTC argued Congress only intended to exempt the specific common carrier “activities” or services sold by a company from FTC oversight, not the entire company. The three-judge panel of the Court of Appeals agreed with AT&T’s view, affirming AT&T’s claim it was untouchable by the FTC and dismissed the FTC’s lawsuit.

Judge Kozinski, questioning AT&T: “I’m regulated by the FTC and I don’t like it. I go out and I buy a small, money-losing common carrier. Do I say, ‘bye bye FTC,’ under your reading of the statute?”

The decision was a stunner in D.C. regulatory circles and opened a chasm-sized loophole for almost any company to completely escape the FTC’s oversight and enforcement of consumer protection laws just by providing a single common carrier service (or acquiring a small phone company that does) to secure blanket immunity. The FTC appealed the decision before the Ninth Circuit Court of Appeals.

Both the FTC and at least one judge hearing the federal agency’s appeal saw the potential impact of the earlier 2016 decision immediately.

“I’m regulated by the FTC and I don’t like it,” Judge Alex Kozinski said to AT&T’s attorney. “I go out and I buy a small, money-losing common carrier. Do I say, ‘bye bye FTC,’ under your reading of the statute?”

The FTC warned if AT&T’s view was upheld, any company could buy a common carrier and violate federal consumer protection laws with no recourse for consumers and no available FTC enforcement action.

This week’s decision, called “common sense” by the judge who wrote the summary of the court’s finding, restores the FTC’s authority over non-common carrier services at companies large and small, including AT&T. It is also a relief to FCC Chairman Ajit Pai, who earlier argued the FTC had jurisdiction over abusive ISPs and would effectively oversee broadband providers without any need to continue the net neutrality policies of his predecessor. Had the court ruled in favor of AT&T, Pai’s policy would have transferred oversight of internet services to an agency legally prohibited from overseeing most broadband providers.

The FTC was pleased with the decision.

“It ensures that the FTC can and will continue to play its vital role in safeguarding consumer interests including privacy protection, as well as stopping anti-competitive market behavior,” Maureen Ohlhausen, acting Chairwoman, said in an emailed statement.

AT&T was not, and claimed the court ignored the merits of the case.

“We are reviewing the opinion and continue to believe we ultimately will prevail,” the representative said in an emailed statement, which did not definitively state whether AT&T intended to appeal the decision.

Charter Communications will have to face a courtroom to answer accusations the cable company intentionally sold internet service at speeds it knew it could not provide to its customers in New York.

New York State Supreme Court Justice O. Peter Sherwood rejected a motion by the cable company to dismiss New York Attorney General Eric Schneiderman’s 2017 lawsuit accusing Time Warner Cable (now owned by Charter) of systematically shortchanging as many as 640,000 New York internet customers by falsely advertising internet speeds it knew it could not deliver, often with at least 900,000 outdated company-provided cable modems incapable of supporting the higher speeds the company promoted.

“Today’s decision by the New York Supreme Court marks a major victory for New York consumers — rejecting every single argument made by Charter-Spectrum in its attempts to block our lawsuit,” said Schneiderman. “This decision ensures that our office can continue to hold Charter-Spectrum to account for its failure to deliver the reliable internet speeds it promised consumers, ripping you off by promising internet speeds it simply could not deliver.”

Charter’s Defense: Spectrum’s Ad Claims for Fast Internet Service are: “Prototypical instances of non-actionable puffery.”

Charter’s lawyers attempted a variety of legal strategies to get Schneiderman’s lawsuit tossed, including undermining the cable company’s own marketing efforts. Lawyers argued the court should ignore Charter’s claims it sold a “blazing fast, super-reliable connection” that could “stream Netflix and Hulu movies and shows effortlessly” as nothing more than “prototypical instances of non-actionable puffery.”

Scheniderman’s office claimed it was much more than that.

N.Y. Attorney General Eric Schneiderman

“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 Schneiderman. “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.”

Charter also claimed it was not legally responsible for meeting its own advertised speeds because the company only sold speeds “up to” a level, without guaranteeing customers would get the speeds it advertised.

Even if a judge found Charter lacking in its legal defense, lawyers for the company more broadly argued that under FCC Chairman Ajit Pai’s net neutrality order, state courts and regulators had no power to regulate or oversee broadband providers because “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,” according to Charter’s attorney Christopher Clark.

Justice Sherwood uniformly rejected all of Charter’s arguments to dismiss the case:

• Improper state venue for the lawsuit: “Spectrum-TWC fails to identify any provision [of law] that preempts state anti-fraud or consumer-protection claims, or reflects any intention by Congress to make federal law the exclusive source of law protecting consumers from broadband providers’ deceptive conduct.”
• False advertising: “This court finds that, contrary to defendants’ contentions, the FCC’s goal of promoting competition through [the Internet Transparency Rule], the FCC stated that the rule was intended to ensure consumers had the “right to accurate information, so [they] can choose, monitor, and receive the broadband internet services they have been promised. New York’s Executive Law and Consumer Protection Act […] require that [providers] refrain from fraud, deception, and false advertising when communicating with New York consumers.
• Netflix/YouTube slowdowns: The issue of interconnection agreements between content providers and Spectrum-TWC are matters for the court to consider because it is not an attempt to regulate those agreements. “Rather, the complaint simply alleges that Spectrum-TWC misled subscribers by claiming that specific online content would be swiftly accessible through its network, while it was simultaneously deliberately allowing that service to degrade […] and failing to upgrade its network’s capacity to meet demand for this content.”
• “Up to” speeds: Spectrum-TWC claimed that advertising speeds “up to” a certain level was not misleading because consumers understood this to mean the maximum speed, not average speed. In Spectrum’s argument, it claimed “reasonable consumers understand this is not a promise of ‘minimum’ performance, but rather ‘maximum’ performance.” But the judge disagreed. “Defendant’s theory is contrary to New York law regarding ‘up to’ claims” when those speeds are “functionally unattainable as a result of the defendants’ knowing conduct.”

Schneiderman’s office is seeking civil fines and restitution from Spectrum-TWC for customers in New York.