Manzanet-Daniels, J.P., Gische, Andrias, Kapnick, Kern, JJ.
6929

The People of the State of New York,
by Eric T. Schneiderman,
Plaintiff-Respondent,

Index 450318/17

-againstCharter Communications, Inc., et al.,
Defendants-Appellants.
- - - - NCTA - The Internet & Television
Association, Consumers Union, and
Public Knowledge,
Amici Curiae.
_________________________
Latham & Watkins LLP, Washington, DC, (Matthew A. Brill of the
bar of the District of Columbia, admitted pro hac vice of
counsel), for appellants.
Eric T. Schneiderman, Attorney General, New York (Ester
Murdukhayeva of counsel), for respondent.
Mintz Levin Cohn Ferris Glovsky & Opoeo, P.C., New York (Scott A.
Rader of counsel), for NCTA - The Internet & Television
Association, amicus curiae.
Institute for Public Representation Washington DC (Andrew Jay
Schwartzman of counsel), for Consumers Union, amicus curiae.
Allison S. Bohm, Washington, DC (John Bergmayer of counsel), for
Public Knowledge, amicus curiae.
_____________________
Order, Supreme Court, New York County (O. Peter Sherwood,
J.), entered February 16, 2018, which denied defendants’ motion
to dismiss the complaint, unanimously affirmed, without costs.

48

 This civil enforcement action alleges that in the marketing
of broadband Internet service defendants have engaged and
continue to engage in fraudulent practices in connection with
advertised promises to subscribers about Internet speeds and
reliable access to online content.

The complaint asserts claims

pursuant to Executive Law § 63(12) and General Business Law §§
349 and 350.
The court correctly rejected defendants’ argument that the
claims based on allegations of false promises about broadband
speeds involve an irreconcilable conflict between federal and
state law that requires a finding of preemption.

The Federal

Communications Commission’s “Transparency Rule” requires
providers of broadband service to “publicly disclose accurate
information regarding the network management practices,
performance, and commercial terms of its broadband Internet
access services sufficient for consumers to make informed choices
regarding use of such services” (47 CFR 8.3).

Defendants make

official disclosures about broadband speeds (actual speeds
measured according to a testing protocol on the modems of
consumers deemed representative) in accordance with the federal
rule.

The complaint alleges that defendants’ use of their

official disclosures in consumer advertisements is misleading,
49

 because other statements in the advertisements give consumers the
false impression that the disclosed speeds represent speeds that
consumers can expect to experience on their devices, including
wireless devices, consistently (cf. Matter of People v Applied
Card, Sys., Inc., 11 NY3d 105 [2008] [rejecting argument that
false advertising claim was preempted by federal credit card
disclosure requirements], cert denied 555 US 1136 [2009]).

The

Transparency Rule does not preempt state laws “that prevent
fraud, deception and false advertising” (id. at 114).
The court correctly determined that the complaint’s
allegations about the advertisements’ representations of speeds
“up to” a certain level state a cause of action (see Goshen v
Mutual Life Ins. Co. of N.Y., 98 NY2d 314 [2002]).

Issues of

fact exist as to whether defendants delivered the advertised
speed levels consistently.
The court correctly declined to dismiss claims based on
allegations about network quality and reliability on the ground
that some of the language in the advertisements is mere puffery,
because other statements in the advertisements are not mere
puffery and are actionable (see Bader v Siegel, 238 AD2d 272 [1st
Dept 1997]).

Since the record does not include the full content

of the advertisements cited in the complaint, it would be
50

 premature to try to determine which, if any, of the cited
advertisements do not support a false advertising claim because
they are mere puffery.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:

JUNE 21, 2018

_______________________
CLERK

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