Charter has New York Attorney General’s lawsuit moved to a federal court

Charter has had the lawsuit filed against it in January by the New York Attorney General removed from the state to a federal court.

Earlier this year New York Attorney General Eric Schneiderman filed a lawsuit against Charter, claiming that Spectrum-TWC promised Internet speeds it knew it could not deliver. He also alleged that it was misleading its subscribers by promising good access to Netflix, online content and online games, which it claimed, according to the accusation, that the ISP intentionally failed to deliver reliable service in a bid to extract fees from backbone and content providers.

When Netflix wouldn't pay, the law suit claimed this: "resulted in subscribers getting poorer quality streams during the very hours when they were most likely to access Netflix," and after Netflix agreed to pay demands, service "improved dramatically." Charter has had the lawsuit filed against it in January removed from the state to the federal court, saying that the Communications Act pre-empts claims made under state law.

Charter is now claiming that failing to maintain interconnection points to handle an ever-increasing traffic load does not constitute what Schneiderman says is ‘throttling’.

Charter has, however, had the lawsuit removed from the state to the federal court with the argument that the Communications Act preempts claims made under state law. Charter, in its application to move the location of the lawsuit, quoted from the Federal Communications Commission (FCC) 2015 Open Internet Order (the net neutrality regulations) to support its contention that states are precluded from imposing obligations inconsistent with the FCC's regulatory regime.

The defendants' court papers said: "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 they say, trying to invalidate disclosures made pursuant to the FCC’s reporting regime; its claim thus is necessarily federal.”

On Monday, this week a motion was filed to remand the case back to state court. The decision could be important if legal officials in other states attempt to fill the void of what the FCC is not yet doing.

Schneiderman's attorneys said: "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."

The legal tussle is therefore as much about the boundaries of legal authority as the legal duties of the ISPs.