The cable industry lobby has petitioned the FCC, asking it to ban states from investigating and taking action on deceptive advertising claims about broadband speed — seeking an end to actions like last year's New York State Attorney General's investigation into Time-Warner's lies about its broadband offerings.
Petitions from NCTA-The Internet & Television Association, USTelecom and the American Cable Association (ACA) have all asked the FCC to intervene to make it difficult or impossible for states to censure cable companies that advertise their broadband offerings as being "up to" a certain speed, when those speeds are realistically rarely reached by any customer in practice.
The 35 attorneys general say the industry petition "ignores the Federal Communications Act's preservation of concurrent state authority over unfair and deceptive practices," as well as the history, purpose, and text of the FCC's transparency rule. There is also nothing in the Communications Act that "preempts state anti-fraud or consumer-protection claims or reflects any intention by Congress to make federal law the exclusive means of bringing such claims against broadband providers," the states' law enforcement officials said.
Disclosures made to comply with federal law do not alter companies' obligations under state law, the attorneys general wrote.
"[I]t appears that the petition is really seeking to alter disclosure obligations under state law, including state consumer protection laws' prohibitions on false and misleading statements and material omissions in consumer-facing advertisements," they wrote. "Such a ruling would plainly exceed the scope of the Commission's authority granted by Congress, and would be improper."
There is also "no factual basis" to determine that ISPs' speed disclosures meet the FCC's "just and reasonable" standard, they argued. "The request is plainly seeking a factual finding, despite the complete lack of any factual record to support such a conclusion," they wrote.
Cable lobby tries to stop state investigations into slow broadband speeds
[Jon Brodkin/Ars Technica]