Defending itself against a lawsuit filed last year by the New York Attorney General’s Office, Charter Communications has gone on the offensive, claiming the New York AG conspired with net neutrality activists, including Tim Wu himself, in a slanted investigation that led to the legal action.
In Charter’s “unclean hands” defense—first reported on by The Hollywood Reporter—the cable company said the AG consulted with a “cabal” including Wu, Netflix and Google while investigating Time Warner Cable several years ago. TWC, of course, has since been purchased by Charter. And Wu is the pioneering Columbia Law School professor who coined the concept and term “net neutrality” back in 2003.
"Charter's unclean-hands defense is that Plaintiff actively conspired with private parties through Tim Wu (a leading critic of ISP business practices) to investigate and sue Time Warner Cable Inc.," wrote Charter attorney Christopher Clark to the judge overseeing the AG’s suit, in a letter obtained by THR. "Thus, Plaintiff delegated what should have been an objective law enforcement investigation to third parties whose pecuniary and political interests are adverse to TWC's, and who had preconceived notions of how and why to penalize TWC.”
Asked for comment, a Charter rep said, “Our recently filed motion speaks for itself and we have no further comment at this time.”
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The trial is in the discovery phase following the State Supreme Court in Manhattan’s decision not to grant Charter’s request to have it dropped several months ago. Charter had argued that the FCC’s overturning of the 2015 Open Internet order undermined the AG’s claims.
In an opposition brief filed last year, the AG argued, "Spectrum-TWC failed to maintain enough network capacity in the form of interconnection ports to deliver this promised content to its subscribers without slowdowns, interruptions and data loss. It effectively 'throttled' access to Netflix and other content providers by allowing the ports through which its network interconnects with data coming from those providers to degrade, causing slowdowns. Spectrum-TWC then extracted payments from those content providers as a condition for upgrading the ports. As a result, Spectrum-TWC’s subscribers could not reliably access the content they were promised, and instead were subjected to the buffering, slowdowns and other interruptions in service that they had been assured they would not encounter.”
The case is proceeding following the resignation earlier this month of New York Attorney General Eric Schneiderman amid sexual misconduct claims. Barbara Underwood has taken over as AG.