Massachusetts received an NTIA greenlight Thursday to access $147 million from the broadband equity, access and deployment (BEAD) program. NTIA said it approved volume 2 of the state’s initial proposal. NTIA has approved entire initial plans for 20 states, three territories and the District of Columbia. The agency approved Utah and two territories earlier this week (see 2407220037).

ISPs now have until Sept. 23 to file a petition for a writ of certiorari at the U.S. Supreme Court concerning the New York Affordable Broadband Act, the court said in a letter released Monday. A petition would have been due later this month, but Justice Sonia Sotomayor approved the extension July 16, the letter said. New York last month agreed not to immediately enforce the 2021 law, which requires $15 monthly plans with 25 Mbps download and 3 Mbps upload speeds for qualifying low-income households, despite the 2nd U.S. Circuit Court of Appeals ruling in April that it’s not federally preempted (see 2406170042). Industry groups have held off appealing the 2nd Circuit decision while they wait to see what the 6th Circuit decides on the FCC’s order reclassifying broadband as a Title II service. The 6th Circuit ruling would affect how ISPs proceed on their challenge of the New York law because the 2nd Circuit decision was based on broadband as Title I.

The New York Public Service Commission rejected calls by Charter Communications and others to make pole owners pay a portion of pole replacement costs when adding an attachment is required. The New York PSC on Monday released its order revising pole attachment rules after adopting the decision unanimously last week (see 2407180028). The PSC adopted one-touch, make-ready for simple attachments in the communications spaces, set dispute resolution time frames, created a pole-attachments working group and added annual reporting requirements (docket 22-M-0101). But it disagreed with arguments about changing a state policy that says that the attacher pays if a pole needs replacement only to accommodate the proposed new attachment, whereas the owner pays if the pole already needed replacement due to its poor condition. Charter and other attachers previously argued that owners benefit from replacements even in the first case and therefore should share costs (see 2403050043). But in Monday’s order, the commission said those companies provided no "quantifiable analysis" or other evidence supporting their assertions that PSC staff failed to consider a pole owner's incentive to shift replacement costs and incorrectly concluded that owners don't benefit from the replacements. Staff determined "that ratepayers do not receive any economic value of poles being replaced to enable third-party attachments even when the attacher entirely funds such replacements,” the PSC said. "Electric utilities do not have an incentive to require attachers to pay for pole replacements because utilities do not earn a return or depreciation expense on contributed assets such as third-party funded pole replacements.” The FCC declined in a December order to shift replacement costs to pole owners, the PSC added. And the PSC doesn’t want to see higher electric rates, it said. "While expanding broadband in New York is critically important, utility customer funds are not unlimited.” Also in the order, while allowing certain alternative types of attachments on a case-by-case basis, the PSC denied Verizon's request to open up the pole's electric space for telecom attachments. "The electric space is designated for qualified and approved electric workers and only includes electric facilities to help protect those working in that space as well as ensure the work performed is done professionally and to code to satisfy reliability and resiliency concerns,” the PSC said. “Opening up the electric space to additional or alternative pole attachment methods raises significant safety, reliability and resiliency concerns and negatively impacts these efforts."

A district court dismissed one count of NetChoice’s 11-count complaint that argued Section 230 of the Communications Decency Act preempts Utah’s Minor Protection in Social Media Act. Utah Attorney General Sean Reyes (R) had sought dismissal of the count (see 2406030026), arguing that nothing in the state law is inconsistent with Section 230. “The court concludes the challenged provisions impose liability for conduct that falls beyond the protections Section 230 affords NetChoice members,” Judge Robert Shelby of the U.S. District Court of Utah ruled (case 2:23-cv-00911-RJS-CMR). “The Act’s prohibitions on the use of autoplay, seamless pagination, and push notifications are not inconsistent with Section 230.” The question is whether those bans “treat NetChoice members as the publisher or speaker of the third-party content they disseminate,” wrote Shelby in NetChoice v. Reyes. They don’t, he said. “The Act’s prohibitions focus solely on the conduct of the covered website -- the website’s use of certain design features on minors’ accounts -- and impose liability irrespective of the content those design features may be used to disseminate.” The judge added, “NetChoice’s interpretation of Section 230 as broadly immunizing websites from any liability for design decisions related to how a site ‘disseminate[s] and display[s] third-party speech’ is unmoored from the plain text of Section 230 and unsupported by the caselaw NetChoice cites.” In a statement Tuesday, NetChoice stressed that the court dismissed only one claim and that its First Amendment and other federal preemption claims remain in play. “We look forward to seeing Utah in court in August,” said Chris Marchese, NetChoice Litigation Center director.

A district court was wrong when it allowed a 2023 Virginia law that gave ISPs access rights to railroad properties, the Association of American Railroads (AAR) said Monday at the 4th U.S. Circuit Court of Appeals (case 24-1399). AAR is appealing a U.S. District Court for Eastern Virginia decision to dismiss the lawsuit against state officials, including Virginia State Corporation Commission Judge Jehmal Hudson for lack of standing and other reasons (see 2404170052). The contested Virginia law allows broadband providers to obtain a license to cross and occupy railroad property for a one-time $2,000 fee and direct expenses of not more than $5,000, paid to the railroad. Among other provisions, the law requires that railroad companies approve ISP applications within 35 days unless they seek relief from the Virginia commission. In an opening brief at the 4th Circuit, AAR argued that the district court wrongly ruled the association lacked standing to bring the complaint because the law was “aimed directly at its members.” The Interstate Commerce Commission Termination Act (ICCTA) preempts the Virginia law, AAR argued. The ICCTA is a 1995 statute that set exclusive federal regulation of railroad transportation, AAR said. It “preempts any state law that discriminates against or unduly burdens rail transportation, including railroad property,” AAR noted. “And a government-sanctioned physical occupation of private property is a per se taking, requiring just compensation.” The lower court “wrongly conclud[ed] that discrimination is not a standalone basis for ICCTA preemption, but a mere limit on an unwritten ‘police powers’ exception to express ICCTA preemption,” it said. Meanwhile, in concluding that the Fifth Amendment's takings clause wasn’t violated, "the court lumped together different kinds of crossings, imported (and misunderstood) facts from an amicus brief, drew inferences against AAR, and wrongly assumed that after-the-fact compensation avoids a Takings Clause violation,” AAR said. Carriers will use the state law “to cross railroad property hundreds or thousands of times,” the railroads group said, arguing for its termination. Even if one crossing were "minimally intrusive," AAR said, "dozens or hundreds of permanent and immovable crossings will aggregate to hinder railroads’ use and development of their property."

The California Public Utilities Commission recommended $144.3 million in federal grant funding for last-mile projects in Sacramento, Riverside and five other counties. Commissioners plan to vote on the draft resolution at their Aug. 22 meeting, the CPUC said Monday. The CPUC recommended grants to seven entities, including AT&T ($18.2 million), Frontier Communications ($22.9 million), the Golden State Connect Authority, ($10.2 million), Colorado River Indian Tribes ($14.8 million) and the city of Sacramento ($38.7 million). It’s the fourth in a series of resolutions approving CPUC federal funding account grants. Commissioners approved $88.5 million in awards from the same program at their July 11 meeting (see 2407110057).

NTIA allowed one more state and two additional territories to access their allocations for the $42.5 billion broadband equity, access and deployment program. The federal agency said Monday that it approved volume 2 of BEAD initial plans by Utah, which was allocated $317 million, plus the Northern Mariana Islands ($80 million) and the U.S. Virgin Islands ($27 million). NTIA has approved entire initial plans for 19 states, three territories and the District of Columbia.

The U.S. Supreme Court should reconsider its denial of a petition for certiorari from a group of Black voters challenging state methods for electing Georgia Public Service Commission members, the voters said Friday. The group filed a petition for rehearing in case 23-1060. Last month, the Supreme Court denied the original petition (see 2406240041). Then, on July 10, the 11th U.S. Circuit Court of Appeals denied rehearing en banc of a denial by one of its panels (see 2407100050). Noting dissents by three 11th Circuit judges, the petitioners wrote, “The July 10 order and accompanying opinions are ‘intervening circumstances of a substantial or controlling effect’ that warrant rehearing in this case.” The Supreme Court didn’t get to consider the en banc opinion before denying cert, they added. That’s because the 11th Circuit didn’t disclose until July 10 “that en banc proceedings had been ongoing,” petitioners said. Had it done so earlier, the deadline to file a cert petition “would have been extended until those proceedings resolved.”

In a dispute over an age-verification law, NetChoice and Mississippi asked to stay proceedings in the U.S. District Court for Southern Mississippi while the state’s appeal is pending. Mississippi appealed the court’s preliminary injunction of the law to the 5th U.S. Circuit Court of Appeals earlier this month (see 2407030076). District Judge Halil Suleyman Ozerden last week denied a request from Mississippi Attorney General Lynn Fitch (R) to stay the preliminary injunction (see 2407160038). Under a law that NetChoice challenged, parental consent is needed for those younger than 18 who access social media.

Kansas awarded $10 million in broadband grants to 12 ISPs, Gov. Laura Kelly (D) said. The ISPs combined provided $12.7 million in matching funds, Kelly's office said. The grants come from an $85 million program funded through the Kansas Transportation Department’s Eisenhower Legacy Transportation Program. The companies that received the most money were: KwiKom ($1.9 million), Midco ($1.79 million) and KanOkla Networks ($950,000).