ISPs Seek SCOTUS Review of N.Y. Affordability Law -- but Not Right Away
Seeking to invalidate New York’s Affordable Broadband Act, ISP groups asked that the U.S. Supreme Court review a 2nd U.S. Circuit Court of Appeals 2-1 ruling that federal statute doesn't preempt the state law. However, SCOTUS should wait until lower courts finish reviewing the FCC’s net neutrality order, CTIA, NTCA, USTelecom, ACA Connects, the Satellite Broadcasting and Communications Association and the New York State Telecommunications Association said in a petition for a writ of certiorari Monday.
The ISPs are challenging a 2021 state law requiring $15 monthly plans with 25 Mbps download and 3 Mbps upload speeds for qualifying low-income households. The 2nd Circuit found that federal law doesn't preempt it, reversing a district court. New York agreed not to enforce the law while SCOTUS considers ISPs’ cert petition. Supreme Court Justice Sonia Sotomayor on Monday asked New York for a Sept. 16 response to ISP groups’ separate application seeking a stay of the state’s broadband affordability law while justices weigh the case, assuming that the court grants the cert petition (see 2408120045).
"Whether States can set prices for interstate information services -- including, but not limited to, broadband -- is a question of exceptional and national importance,” wrote ISP petitioners in docket 24A138. The 2nd Circuit’s “2-1 acceptance of New York’s contention that it has that authority threatens to spark a nationwide, state-by-state race to dictate the prices at which broadband service is sold to consumers,” petitioners said: SCOTUS should grant cert "to confirm that the federal Communications Act -- not a patchwork of state laws -- governs the regulation of interstate communications services such as broadband.” Petitioners additionally warned that if states are allowed to regulate broadband prices, they might later set prices for other interstate information services including email, cloud storage, streaming and videoconferencing.
While the case may be important, the ISPs groups asked SCOTUS to wait until the courts resolve litigation on the FCC’s order reclassifying broadband as a Title II service under the Communications Act. Earlier this month, the 6th Circuit stayed the FCC’s order (see 2408010066). That directly affects the New York case because the 2nd Circuit’s ruling was based on the previous Title I regime (see 2404260051).
The Supreme Court should review the New York law “after the Sixth Circuit or (if someone seeks and this Court grants certiorari) this Court first confirms the Title I classification of broadband,” the ISP groups suggested. “The Court may do so either by holding this petition or by granting it and delaying briefing or argument so the Court can address this issue alongside or after resolution of challenges to the FCC’s order.”
The “upshot” of the 2nd and 6th circuit decisions is that each state “can now do what the FCC cannot -- subject an interstate information service to common-carrier regulation, including rate regulation,” the ISP groups said. “A world in which States can countermand Congress’s preclusion of rate regulation for such services will end long-standing national uniformity for broadband, to the detriment of providers, consumers, and the nation.”
"While the [FCC] has repeatedly reversed course on whether broadband internet access service ... is a common-carrier telecommunications service under federal law, one thing has remained constant: no government -- state or federal -- has regulated the rates consumers pay for broadband service,” the petitioners said. The 2nd Circuit’s dissenting judge and the district court were right that the Communications Act preempts states from regulating prices, they said. “Both field and conflict preemption apply here.”