Tuesday, July 10, 2012

Slowness in Skype, http, etc. not enough to allege falsity of "fast" internet service

Fink v. Time Warner Cable, 837 F. Supp. 2d 279 (S.D.N.Y. 2011)
Plaintiffs Fink and Noia brought a putative nationwide class action asserting claims under NY and California consumer protection law and related claims, alleging that Time Warner misrepresented its Road Runner service as high-speed when it really throttles access.  The court granted Time Warner’s motion to dismiss for failure properly to allege misleadingness.  Time Warner advertised Road Runner as an “always-on connection” that is “up to 3 times the speed of most standard DSL packages and up to 100x faster than dial-up,” and provides the “fastest, easiest way to get online.”  The speed for a standard DSL connection is 1.5 megabytes per second (“Mbps”) for download and 384 kilobytes per second (“Kbps”) for upload, while standard dial-up speeds are 52.2 Kbps for download and 53 Kbps for upload.  Doing the math at “3 times standard DSL,” Road Runner touts approximately 4.5 Mbps for download and 1,152 Kbps for upload, while 100x the speed of dial-up would provide approximately 5,220 Kbps/5,300 Kbps.  Fink and Noia, however, found their connections blocked entirely when they tried to use services such as Skype, and when
hen using other programs, including BitTorrent, FTP and HTTP, Noia found that his upload speed was very slow, ranging from 10 Kbps to 30 Kbps.
The court had already held that “blazing fast” and “fastest, easiest way to get online” were non-actionable puffery.  Plaintiffs alleged that they didn’t get “always-on connections” because their connections were blocked when they tried to use services such as Skype, and they didn’t receive the promised high-speed internet “up to 3 times the speed on most standard DSL packages and up to 100x faster than dial up.”  
The court, however, found these allegations insufficient to establish deceptiveness.  Plaintiffs didn’t allege that their internet connections as a whole were blocked, as opposed to just Skype.  Likewise, the allegations about Skype, BitTorrent, FTP and HTTP were insufficient because they didn’t show that the overall internet connections failed to provide the promised speeds, only that “a limited subset of applications were slower than promised.”  Comment: what?  Take out http and you have taken out my internet access!  I can’t imagine that there aren't many reasonable consumers who'd agree.  Is the theory really that POP, IMAP, and SMTP might have been working as fast as Time Warner promised, and so the claims weren’t misleading?  I don’t think a reasonable consumer needs to try out every possible protocol before deciding “this thing isn’t doing what I was promised!”  The court distinguished other cases allowing similar claims to proceed because the plaintiffs generally alleged that they didn’t get the “internet” speed promised.  I highly, highly doubt that those cases’ plaintiffs tried a large number of protocols; the instant plaintiffs may just have been too specific, or maybe the court just didn’t believe the http allegations, though that seems … odd.  The court also may not have made the finest distinctions between applications and protocols.  Some combination of disbelief and limited understanding may explain why the court said that plaintiffs only alleged that their “connection speeds were subpar with respect to a narrow subset of applications.”  Maybe Skype is narrow, but BitTorrent’s pretty popular, not to mention http. 
Further, the court found that “up to” was a qualification that would lead a reasonable consumer to expect speeds less than the advertised speeds.  Note the potential relevance of the just-released FTC report on what consumers understand “up to” to mean.  Also, if the throttling allegations are correct, then even “up to” isn’t right, because plaintiffs couldn’t get “up to” the advertised speeds.
Anyway, without misleadingness, all the claims failed.  Plaintiffs argued that how a reasonable consumer would interpret Time Warner’s representations was a factual issue, but the court found that the allegations relating to “a narrow subset of applications” were insufficient to plead plausibly that a reasonable consumer would consider Time Warner’s “always on” and “up to” claims false or misleading.

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