Charter Tries To Tap Dance Out Of Lawsuit Over Substandard Broadband

from the we-don't-have-to-care----we're-the-cable-company dept

Last month, we noted how New York Attorney General Eric Schneiderman sued Charter Communications for knowingly providing broadband service well below advertised speeds. After an initial first read I didn't think much of the lawsuit (pdf), but upon closer inspection it provides some pretty damning evidence that Charter not only knowingly failed to provide decent service (and just didn't care, since this is the uncompetitive broadband industry), but in some instances actively made connections worse for its own competitive advantage.

The AG's suit highlights how Charter manipulated data for a program run by the FCC to monitor consumer connection speeds. This program, co-operated by a UK outfit dubbed SamKnows, gives volunteers custom-firmware embedded routers to monitor connection quality and speed. The FCC was then using this data to name and shame ISPs that failed to deliver advertised speeds. The lawsuit highlights how Charter executives worked to intentionally deliver faster speeds to just these customers in order to trick the FCC into believing its network was performing better than it actually was.

The suit also seemed to confirm something that content and transit operators have been complaining about for a few years -- namely that large incumbent ISPs were intentionally letting interconnection points get saturated to extract additional fees from backbone and content providers like Netflix. This behavior quickly ended thanks in large part to the FCC's new net neutrality rules, which currently protect such interconnection relationships from abuse by incumbent telecom mono/duopolies. With these rules possibly dying this year, it's a problem you can be sure will re-emerge.

Not too surprisingly, Charter is trying to have this case thrown out. Recent court filings (pdf) indicate that the company successfully had the case moved from state to federal court, with Charter lawyers arguing that the Communications Act completely preempted claims under state law. Charter lawyers even went so far as to justify this position using the exact same 2015 FCC net neutrality rules ISPs lobbied, repeatedly, to destroy:

"Charter even went so far as quoting language from the FCC's 2015 Open Internet Order (aka the net neutrality regulations) to support the proposition that states are precluded from imposing obligations inconsistent with the FCC's regulatory regime.

According to defendants' court papers providing notice of removal, "Given the State’s distortion of the speed tests approved by the FCC and its reliance on other tests that the FCC does not require or endorse, if the 'state court vindicate[s] [the State’s claim], the relief granted would necessarily force [Defendants] to do more than required by the FCC.' The State is, in effect, 'trying to invalidate' disclosures made pursuant to the FCC’s reporting regime; its claim thus is necessarily federal."

With the new Trump FCC making it very clear that incumbent ISPs are going to get a free pass on the consumer protection front, the states (with an even more inconsistent track record on consumer protection than the federal government) may wind up being the only thing standing between you and the dubious ethics of companies like AT&T, Charter and Comcast:

"On Monday, the NY AG's office filed a motion to remand the case back to state court. The forthcoming decision could be an important one if other top legal officials in states across the nation attempt to fill the void of whatever the FCC is not doing....Schneiderman's attorneys argue that the lawsuit is "rooted entirely in the kind of consumer deception that is within the traditional purview of state law and is historically subject to enforcement in state court."

Charter's in a somewhat unique position due to conditions attached to the company's recent acquisition of Time Warner Cable and Bright House Networks. Those conditions banned the company from not only imposing usage caps, but also require it to continue to adhere to the FCC's net neutrality rules (including the interconnection provisions) for seven years -- even if they're dismantled by ISPs and loyal politicians this year. Other ISPs face no such restrictions, and depending on Charter's success here, incumbent ISPs may soon find themselves in a new golden era for anti-competitive behavior.


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  • identicon
    Anonymous Coward, 17 Mar 2017 @ 2:24pm

    Anonymous measurements

    Anonymous measurements.

    "The lawsuit highlights how Charter executives worked to intentionally deliver faster speeds to just these customers in order to trick the FCC into believing its network was performing better than it actually was."

    Such measurements regimes should be conducted anonymously so that an ISP can't game the numbers.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 17 Mar 2017 @ 3:08pm

      Re: Anonymous measurements

      Given the measurements involved custom hardware, it's possible that it was meant to be anonymous but Charter figured out a way to ID who was using the 'special' routers and rigged their connections to give abnormal results to those specific individuals.

      reply to this | link to this | view in chronology ]

      • icon
        Eldakka (profile), 19 Mar 2017 @ 5:47pm

        Re: Re: Anonymous measurements

        Given the measurements involved custom hardware,

        Custom firmware. Therefore it's not based on hardware detection.

        However, there are things in the firmware that could give them away - e.g. the ISP could monitor for communications with the reporting servers if the firmware directly accesses these rather than using some obfuscation method (such as randomized proxies/VPNs etc.) or even DPI if the reporting doesn't use SSL (which I would hope it would).

        reply to this | link to this | view in chronology ]

    • identicon
      corrosive, 18 Mar 2017 @ 1:47pm

      Re: Anonymous measurements

      According to the PDF, they oversubscribed their modem speeds by 20% in low congestion areas to bring up their average score. It would not surprise me if other ISPs did this as well-- it's something I've suspected for some time now.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2017 @ 2:54pm

    and something that definitely needs examining carefully is which politicians are involved with allowing the incumbent ISPs to get away with their noncompetitive behaviour and what rewards were given!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Mar 2017 @ 7:55pm

      Re:

      politicians are involved

      I think it would be easier to list those that are not on board with them than otherwise. Check out Opensecrets.org to find out just how much telco's give to politicians, and that's just what is open record. A lot more is given secretly (thirty to fifty times more) as is allowed by the Citizens United decision. Those not on board are frequently targeted to be "primaried" as are those that dare to say "Uh, wait a minute..."

      reply to this | link to this | view in chronology ]

  • identicon
    SpaceLifeForm, 17 Mar 2017 @ 3:01pm

    Due Diligence

    No longer considered apparently.
    Charter should just admit that
    the TW network was neglected
    and little is Docsis3.0 ready.

    reply to this | link to this | view in chronology ]

  • identicon
    stine, 17 Mar 2017 @ 10:06pm

    speedtest

    When I had ATT DSL, I discovered that my download speed graph looked like an "L" for any single file download. I got 30M for the first partial second which was then throttled to ~5M for the remainder of the download. I discovered that If I opened a new tab and began a speedtest, the other tabs' download would shoot right back up to 30M, and stay there, even if I terminated the speedtest immediately.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Mar 2017 @ 5:47pm

    like the FCC's newest telecom bitchboy Ashit Piel will even give 2 shits over what the telcos do? he will just talk out his ass to cover this one up as well. He follows the telcos so closely if they ever came to a sudden halt he would go halfway up their ass!!!

    reply to this | link to this | view in chronology ]

  • identicon
    Chuck, 20 Mar 2017 @ 8:53am

    Par for the course

    Charter pulls crap like this all the time. Sometimes I think they're SPECTRE - like they ONLY ever do things if they meet a certain minimum threshold of evil. If there isn't at least one white cat somewhere in the corporate HQ I'll be shocked.

    I worked for a small regional ISP for about 2 years (about 150 customers, very rural area) that provided internet via 700mhz radio dishes. Our connection out to the world was a supposed 45MBit fiber optic line from, you guessed it, Charter! We routinely had serious congestion issues when our customers were using only 30MBit between them. Yes, they do this EVEN with a "corporate client" that most, better companies wouldn't shaft even when they normally shaft individual consumers.

    I've been one of the consumers, too. Contrary to popular belief, Charter has never sold internet access to any one person, ever. Instead, Charter sells access to a "trunk" which is a fancy way of saying a street/block/very large apartment building/etc. That trunk, in turn, is connected to the internet - and you know that whopping gigabit of internet they're now selling people? THEY AREN'T. The TRUNK, NOT YOU, has 1 gigabit of internet, and you and everyone else on your trunk SHARE that bandwidth. While this is all fine and dandy if you live in Maybury and nobody leaves 9 TVs streaming all day while they're at work with only their cat at home to watch them, this is sadly not the world we live in.

    So yes, much like the music and apps you're only buying a license to use, Charter isn't really selling you internet service. But hey, maybe you'll get lucky and get the one and only trunk in America where nobody abuses their access. It could happen!

    If you do, buy lottery tickets.

    reply to this | link to this | view in chronology ]


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