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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