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Spectrum Lawsuits

Will the Federal Trade Commission Pursue Windstream Litigation?

One of the things that scares people away from satellite Internet service providers is the prospect of being sued for illegal download activities. As with all legal matters, the answer varies. In order to understand why this may be the case, you must first know what is not allowed. Like all other web service providers, Spectrum strives to make sure that their clients are protected. Unfortunately, your agreement will likely include language stating that you are prohibited from filing frivolous Spectrum lawsuits in all applicable jurisdictions.

You should know that this is not a rule intended by the provider. Rather, it is an obligation inherent in your agreement with the company.

This “agreed” upon language was developed by the consumer arbitration organization (C.A.O.) and implemented as part of the original agreement between Spectrum and its subscribers. The charter of the Consumer Arbitration Organizations Act makes it perfectly clear that subscribers are obligated to seek counsel from an attorney who belongs to the National Association of Attorneys General (N.A.A.G.)

Many consumers are surprised to learn that there is no such thing as a “windshield” or “time warner cable” shield. Instead, there is what is known as a “charter of carriage.”

With that caveat in mind, it is important to note that there are no laws that prevent consumers from using third party software tools to file copyright or other claims on spectrum. The fact that the Windstream Company chooses not to enforce certain laws protects their subscribers from being harmed.

Another interesting bit of information is that the Federal Trade Commission believes that a large number of spectrum subscribers who have been affected by Windstream’s anti-spam efforts have in essence been victims of consumer arbitration lawsuits.

Even though the Federal Trade Commission is attempting to change or reduce the power of these lawsuits, the Commission is not trying to prevent consumers from suing companies for slow or malfunctioning internet speeds, sub-prime service, and billing errors and omissions. The Commission is attempting to regulate these lawsuits to prevent abuse of the system and protect the interest of honest businesses and their consumers.

One of the most interesting aspects of this article revolves around the issue of federal immunity.

Because the Windstream case was filed in state court, the judge presiding over the case was unable to find sufficient evidence of abuse of the system. The decision essentially left open the question of whether or not federal immunity would extend to the Windstream situation. It is important to note that the Federal Trade Commission is an independent agency. Many of the lawyers and judges who are involved with the cases that come before them are former government employees who were later hired by the lawyers and regulators at the FTC.

The federal immunity issue was touched on during the House Energy and Commerce Committee hearings on the FTC’s attempts to reform its anti-spam efforts.

The FTC Chairmen Reps. Frank Pallone (D-New Mexico) and Greg Waxman (D-California) criticized the lack of proof of abuse and pointed out that the lawsuits filed by the Windstream company fit within the definition of an unfair trade practice. I think the idea here is that if a company simply cannot prove that they were abused, that they were intentionally targeted due to their industry, then they cannot be held liable for civil liabilities. That is a very broad reading of the law. Further, any such lawsuit filed solely on behalf of the wind energy industry has no standing whatsoever in the courts.

The FTC Chairmen issued statements claiming that the Windstream case was “baseless” and that the industry will suffer because of the lawsuit.

There are two major problems with that position. First, lawsuits filed by the Gun Industry are often successful. Second, the fact remains that there is no definitive answer as to whether or not federal immunity will immunize an entire industry from being sued when that industry is somehow guilty of unfair trade practices. The fact remains that the gun industry, like all industries, must continually come up with ways to prevent themselves from becoming a victim of lawsuits.

So the question remains. Will the Federal Trade Commission go after the gun industry now that it has been exposed as an abuser of the system? Most likely, the FTC will not.

Instead, we should focus our attention on Congress passing new federal immunity laws that will prevent the FTC from coming after the gun industry again in the form of unfair trade practices lawsuits. If those laws are passed, we may see another onslaught of lawsuits against the gun industry.

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