The following e-filed documents, listed by NYSCEF document number (Motion 002) 51, 52, 53, 54, 55, 56, 57, 59, 60, 61, 63 were read on this motion to/for DISMISS. DECISION+ ORDER ON MOTION Upon the foregoing documents, it is Defendant Charter Communications Operating, LLC (CCO) moves pursuant to CPLR 3211 (a)(1) and (a)(7) to dismiss the amended complaint filed by plaintiff EarthLink LLC (EarthLink) on March 18, 2021. This action arises from the “proposed combination of AOL and Time Warner [which] raised significant antitrust concerns among U.S. regulators.” (NYSCEF Doc. No. [NYSCEF] 15, Amended Compl. 26.) The regulators were concerned about the “deleterious effect on consumer choice” which “would ultimately deprive consumers of the ability to choose between a variety of Internet providers.” (Id.) The regulators allowed the combination to proceed on condition that Time Warner “open up its cable system to competitor Internet service providers (ISPs), including EarthLink.” (Id. 29.) On June 30, 2006, Time Warner Cable and EarthLink entered into a High-Speed Services Agreement (HSSA). (Id. 30.) The obligations of the agreement were assigned to CCO after it merged with Time Warner Cable in May 2016. (Id. 38.) CCO elected to terminate the agreement on October 31, 2017 when Windstream purchased EarthLink, which triggered a three-year transition period which would expire on October 31, 2020. (Id.
43, 80.) The parties’ dispute arises from COO’s alleged conduct during the transition period. Under the HSSA, subscribers could receive “EarthLink-branded internet in conjunction with voice and video services from COO’s Spectrum brand.” (NYSCEF 15, Amended Compl. 11.) COO was “the initial and primary point of contact for customer service and support.” (Id.) During the transition period, all the terms and conditions of the agreement continued. (NYSCEF 53, HSSA §8.6.) Specifically, the HSSA requires COO to continue servicing existing subscribers from “immediately prior to, or within six (6) months, after the Change in Control” of Earthlink, which occurred on October 31, 2017. (Id. §13.8; see also NYSCEF 15, Amended Compl. 43.) EarthLink alleges that at some point prior to the termination of the transition period, COO “secretly used its call centers to target” EarthLink’s subscribers and “affirmatively mislead them about EarthLink and its service.” (NYSCEF 15, Amended Compl. 52.) EarthLink also alleges that COO changed its reporting system in an attempt to cover up the deceptive and unfair campaign. (Id. 55.) Around the same time as this reporting change, several subscribers allegedly alerted EarthLink that, during customer service calls, COO representatives had tried to convince them to switch from EarthLink to Spectrum. (Id. 56.) Specifically, EarthLink alleges the following statements: “• Spectrum cut you guys off without my approval, * * Real happy with EarthLink, was sad when Spectrum said it would no longer support you. • Spectrum did not support EarthLink. • Spectrum made an unauthorized change to my EarthLink internet account which could not be reversed by EarthLink. Consequently, I had to switch to Spectrum * *Wish that EarthLink had internet service in my area independent of Spectrum. • Spectrum told me that they took over you. • I was switched by spectrum…they told me earthlink wasn’t in business anymore * * I would really like to find a fast internet…haven’t so far. • I was told by Spectrum that I could not keep Earthlink internet because I dropped my TV subscription with Spectrum. I still don’t understand why and wish I was still with Earthlink. * *Maybe you can find out why they made me leave Earthlink and forced me to pay more for Spectrum internet? • Our CATV system stopped carrying Earthlink internet unless we paid double for it. • TWC was acting as rep for EarthLink and one days changed our service. We were and I do use AOL even now. Then TWC sold to Spectrum who upgraded my Internet and in passing told me they had nothing to do with EarthLink. * * Your old service was fine in our eyes — indeed, we saw nothing of EarthLink as opened AOL. Spectrum gives our HOA a special rate including equipment, HBO, and Showtime. I pay extra for a phone line.” (Id. 59.) At the outset, EarthLink supplied Time-Warner Cable with 1,000,000 IP addresses, which were necessary to enable the EarthLink subscribers to connect to the Internet. (Id.
