• by Wendy Davis  @wendyndavis, June 20, 2017

Charter is asking a New York state judge to dismiss a lawsuit by Attorney General Eric Schneiderman, who alleges that the company duped consumers by delivering slower-than-advertised broadband speeds.

The cable company argues that the Federal Communications Commission's comprehensive broadband regulations prevent Schneiderman from proceeding with the case.

The FCC "has developed a detailed federal regulatory regime governing broadband speed disclosures and interconnection practices," Charter writes in a motion quietly filed with Manhattan Supreme Court Justice Peter Sherwood late last month. "That regime includes a federal safe harbor for the disclosure of average broadband speeds measured during the peak period of demand. It also provides for FCC adjudication of interconnection disputes."

The argument comes in response to a lawsuit filed by Schneiderman in February, when he alleged that Time Warner -- purchased by Charter last year and subsequently renamed Spectrum -- fraudulently induced at least 640,000 subscribers in New York to purchase plans with speeds higher than the company could provide.

Schneiderman's complaint included allegations that subscribers on a plan promising 300 Mbps typically received 15% of the promised speed when connecting wirelessly. Time Warner also allegedly failed to provide many customers with modems capable of enabling Web-surfing at the advertised speeds.

The lawsuit also alleged that Time Warner didn't do enough to prevent congestion -- apparently referring Netflix users' prior problems with choppy streams. In 2014, Netflix largely resolved the issue by entering into agreements to pay providers extra fees in order to interconnect directly with their networks.

Charter argues that the FCC's net neutrality regulations deprive Schneiderman of the authority to pursue his allegations. The company points to a 2010 rule requiring networks to transparently disclose matters like broadband speed, and the 2015 net neutrality rules, which refined the 2010 standard.

The cable company specifically argues that the FCC's transparency standards only require it to disclose the average peak-period speeds, which the FCC publishes in its Measuring Broadband for America report. Charter also contends that Schneiderman's allegations rely on "unofficial" speed tests by Ookla and M-Labs. "Neither of these tests has been recognized by the FCC as a reliable measurement of actual network performance," the cable provider argues.

Schneiderman is expected to respond to Charter's argument next week.

Charter isn't only pressing its claims in court. The company's chairman and CEO, Tom Rutledge, also serves on the board of directors of the trade group NCTA -- The Internet & Television Association, which is asking the FCC to side with Charter in a declaratory ruling.

"The Commission’s authority to maintain uniform rules for the industry is threatened by state efforts to mandate different disclosures based on unreliable performance metrics," the NCTA argues in its petition. "The Commission should take action to avoid a patchwork of inconsistent requirements and to protect its authority to maintain a uniform national framework for this interstate service."

On Monday, Schneiderman and 34 other attorneys general urged the FCC to reject the NCTA's petition. "The states’ traditional consumer protection powers must be left undisturbed to protect consumers from false and misleading claims by broadband providers regarding the provision of services that are an essential part of 21st century life throughout the United States," they argue.