Charter Communications is appealing the decision by a judge of the Supreme Court of the State of New York that the FCC doesn't have the authority to preempt state laws and that its speed claims are actionable.
New York State Attorney general Eric Schneiderman filed a complaint alleging that Time Warner Cable (which Charter acquired) "promised to provide broadband speeds it knew it could not deliver and mischaracterized the reliability of access to certain online content."
Charter countered, in seeking to dismiss the complaint, that the allegations were preempted by the 2015 Open Internet's Transparency Rule and other FCC guidance, and that the state had failed to cite a legitimate cause of action because the FCC's speed test showed that TWC was "clearly capable of providing — and often did provide — the broadband speeds it advertised, and its “up to” representations thus could not have misled a reasonable consumer."
Charter also argued that other claims in TWC's ads were subjective "non-actionable puffery," which is actually a legal term for a promotional "exaggeration" that consumers aren't supposed to take seriously.
On Feb. 16, the court denied Charter's motion to dismiss, saying that while some of the claims were puffery, others were not and were actionable. It also found that the FCC can't preempt state law, which the FCC has asserted it can in its recent Restoring Internet Freedom rollback of the 2015 Open Internet order rules.
Charter wants that denial reversed, arguing that the FCC's broadband speed test preempts the speed claims in the company's advertising, and that some of its speed claims are backed up by the FCC test, while others are non-actionable promotional puffery.