Why NY attorney general is investigating broadband Internet speeds

In a case spearheaded by a noted open Internet advocate, the New York attorney general is investigating whether three large Internet providers are charging customers for fast broadband Internet and delivering connections that are slower than advertised.

The attorney general’s office sent letters to Verizon, Cablevision, and Time Warner Cable on Friday requesting each company provide copies of any studies they had done to test their Internet speeds as well as all disclosures the companies have sent to customers about the speeds, Reuters reports.

"New Yorkers deserve the Internet speeds they pay for. But, it turns out, many of us may be paying for one thing, and getting another,” Attorney General Eric Schneiderman said in a statement on Monday, Reuters reports.

The services are often advertised as allowing customers to browse the Web at lightning-fast rates, making streaming services such as Netflix and downloads of music, movies, and TV shows almost instantaneous.

But in the letter to Verizon, senior enforcement counsel Tim Wu wrote, the office was “concerned that, for reasons substantially within Verizon’s control, consumers may not be experiencing the speeds advertised.

Mr. Wu, a longtime advocate for an open Internet who coined the phrase “net neutrality,” is currently on leave from his position as a professor at Columbia Law School to work at the attorney general’s office.

The attorney general’s investigation comes on the heels of net neutrality rules adopted by the Federal Communications Commission in February that prohibit service providers from blocking or favoring content from some providers over others. Federal regulators have also been investigating Internet download speeds since June 2014.

“I think we could see more information about how fast people’s actual speeds are,” says James Grimmelmann, a law professor at the University of Maryland who focuses on Internet policy issues. “It opens up a second front, because now you have not just the FCC, but also a state attorney general bringing cases, and in some ways Schneiderman and Wu may be more aggressive than the FCC will, because they also have an explicit consumer protection mandate."

The cable companies rejected the attorney general’s suggestion that they were misleading consumers about their Internet speeds.

“We’re confident that we provide our customers the speeds and services we promise them and look forward to working with the AG to resolve this matter,” Time Warner Cable spokesman Bobby Amirshahi said in a statement, Reuters reports.

Cablevision’s Optimum Online service “consistently surpasses advertised broadband speeds, including in FCC and internal tests, spokesman Charlie Schueler told Reuters. “We are happy to provide any necessary performance information to the Attorney General as we do to our customers.”

Particularly at issue in the investigation are so-called interconnection agreements, contracts that service providers negotiate with other local companies to mutually share data.

A dispute over the agreements between a cable provider and a company that carries Internet traffic can lead to technical problems for consumers, including a disruption in their service, the attorney general’s office noted in its letter.

Service disruptions can be particularly apparent while watching a bandwidth-intensive service such as Netflix, which was the subject of a long dispute with Comcast over access to the Internet provider’s broadband network. Netflix eventually agreed to pay Comcast for a direct connection to the the company’s network in February 2014.

“The simplest metaphor is that this is somewhat like disputes over whether a cable company may not carry a channel,” says Professor Grimmelmann. “This is not quite like that because there’s always another route to the Internet, but it might be a slower, more roundabout path that causes lower-quality video, or is slower and congested because everybody’s watching in the evening."

A 2014 study by the Measurement Lab Consortium (MLAB) found that users’ Internet connections can grow weaker at points where broadband providers connect with so-called long haul carriers. The agreements between the various Internet providers can be “complex and hotly negotiated,” the report says, noting that business disputes, not technical problems, can be at the root of disruptions to users’ Internet service.

A spokesman for the Attorney General’s office told Reuters that the MLAB study, along with consumer complaints and its own analysis, prompted the investigation into the cable giants.

Grimmelmann says that while cable companies have been careful to label high speeds such as 100 megabits per second as “top speeds,” the attorney general’s investigation may raise some public awareness about how technical issues like interconnection agreements impact consumers.

“I don’t know if it will ever be as headline grabbing as the initial network neutrality debates, but now that we have net neutrality rules, a lot of the attention of people working within them is going to shift into this technical level, and some of that may sway back down to the public,” the professor says.