Cable Companies Using Net Neutrality Repeal To Claim No Legal Responsibility For Slow Speeds

Cable companies and telcos are trying to have it both ways: claiming that the US Federal Communications Commission's rollback of net neutrality means that states cannot regulate them and that they are not responsible for contractual obligations to provide better internet access and service.

But, in addition to this week's Senate vote recommending that net neutrality repeal be overturned, in its rush to push repeal through, the FCC may have inadvertently surrendered its authority to supersede states on these matters. Stay tuned. (as it were...). JL


Karl Bode reports in Tech Dirt:

In the wake of the net neutrality repeal, companies like Charter are trying to claim that states have no legal authority to hold them accountable for failed promises, slow speeds, or much of anything else. Cable operators are enjoying larger broadband monopolies than ever before thanks to telcos that have no interest in upgrading aging DSL lines at scale. But, ironically when the Ajit Pai's FCC rolled back classification of ISPs, it also abdicated its own authority allowing it to tell states what they can do
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.