Last week, a New York State Supreme Court allowed a false advertising lawsuit brought by the New York Attorney General ("NYAG") against Charter Communications to continue, denying Charter's motion to dismiss.

In its lawsuit, the NYAG alleged that Charter failed to provide promised internet speeds and reliable access to internet content.  The NYAG alleged that Charter advertised that it provided specific speeds ranging from 20 to 300 Mbps and that subscribers were guaranteed "reliable Internet speeds," delivered "consistently," and "without slowdowns." 

Charter argued that the advertising was not misleading because it only promised speeds "up to" a particular speed.  The court rejected this argument, saying that an "up to" claim was not appropriate where, according to the NYAG's allegations, the speeds were "functionally unobtainable as a result of the defendants' knowing conduct."  The court also said that the phrase "up to" does not communicate a maximum speed, but instead "expresses a representative amount a consumer would receive."  

The court also rejected Charter's arguments that its reliability claims were puffery, saying that Charter's claims about reliability -- such as "no buffering," "no lag," "no slowdowns," "without interruptions," and "without downtime" -- are all "highly specific claims that are easily capable of being proven to be true or false through common testing methodologies, and, by definition, are not puffery."