State AGs, Others Oppose Cable/Telco Bid for FCC Broadband Speed Disclosure Pre-emption

Numerous state attorneys general and some others opposed an NCTA/USTelecom request for FCC clarification of broadband speed disclosure rules to ensure harmonization and industry flexibility in light of state mandates (see 1705160063). The American Cable Association, Adtran and CenturyLink backed the cable/telco petition. Comments were posted Monday and Friday in docket 17-131.

The petition purports to "clarify" and "confirm" certain rules but instead would "upend the longstanding dual state-federal regulation of business practices of broadband providers by asking the Commission to block state and local authorities from routine enforcement of state consumer protection laws and declare that the Commission alone regulates all advertising about broadband performance," said a bipartisan group of AGs from 34 states and the District of Columbia. "The Petition represents nothing more than the industry’s effort to shield itself from state law enforcement, makes legal arguments that are contrary to well-established precedent, and asks the Commission to utilize a wholly inappropriate vehicle to make a radical change in the federal regulatory regime. ... The states’ traditional consumer protection powers must be left undisturbed to protect consumers from false and misleading claims by broadband providers."

Public Knowledge said the FCC lacks authority to pre-empt state consumer protection efforts. "Even if the Commission did have authority to preempt in this matter, it should decline to do so, as states are better equipped with the expertise and personnel to police fraudulent and deceptive business practices carried out within the state," PK said. It said a recent complaint filed by New York's AG against Charter Communications and Spectrum Management Holding Co. (formerly Time Warner Cable, which now is part of Charter) appears to be motivating the petitioners. PK said a federal court ruled the complaint isn't pre-empted by federal regulation (see 1704280024), but Charter is seeking to have the New York Supreme Court dismiss it (see 1705110025).

Three other consumer groups opposed the petition's request for an FCC declaratory ruling that “it is consistent with federal law for broadband providers to advertise the maximum (‘up to’) speeds available to subscribers on a particular tier, so long as the provider otherwise meets its obligations" under the agency's transparency requirements. "Such a ruling would contradict the Open Internet Transparency Rule and the Commission’s guidance on compliance with the Rule, in place since 2010," said the Center for Democracy & Technology, Electronic Frontier Foundation and Consumers Union. "It could allow broadband internet access service (BIAS) providers to make inaccurate and misleading statements to consumers about their network performance and capabilities, which the Transparency Rule is supposed to prevent." The Institute for Local Self-Reliance also opposed the petition.

The ACA backed the industry call for an FCC determination that its national regime for measuring and disclosing actual broadband speeds precludes state enforcement actions that "impose different and/or inconsistent" metrics under state laws. The national approach "is designed to provide consumers across the country with uniform, accurate, and useful information by requiring BIAS providers to disclose the easily understandable metric of average upload and download speeds at peak-usage periods," the group said. State actions, such as the New York AG's, using "unofficial measurement tools and metrics as the basis for alleging false advertising, raise significant concerns and impose substantial burdens for smaller BIAS providers," ACA said.

A "patchwork of inconsistent state and federal requirements would impose undue burdens" on ISPs and confuse customers, Adtran said. The state testing methodologies are flawed and may not accurately measure actual broadband speeds, the company said. "The Commission -- working with a wide variety of entities, including ADTRAN -- developed the Measuring Broadband America programs as a means of determining broadband speeds in a consistent and thorough manner," but states are utilizing "alternative measurement tools, including speed tests offered to the public by Ookla (Speedtest.net) and M-Labs (the Internet Health Test or IHT)." CenturyLink similarly said state actions are introducing "inconsistent metrics and consumer confusion."