New York state is appealing to the Supreme Court to dismiss a legal challenge against its 2021 law, which mandates Internet Service Providers (ISPs) to provide affordable plans to low-income residents.
The case primarily revolves around the classification of ISPs and the extent of state authority under different interpretations of federal law.
In 2018, the Federal Communications Commission (FCC) issued an order that classified broadband internet as an information service, falling under Title I of the Communications Act. This classification provided the FCC with limited regulatory authority, allowing ample room for states to regulate. However, this 2018 order has now been replaced by a new FCC order, which classifies broadband as a telecommunications service under Title II of the Communications Act. This new order grants the FCC broader regulatory authority. It’s important to note that the new FCC order is currently temporarily stayed due to separate litigation unrelated to the matter at hand. The main question at the center of this debate is whether New York’s Affordable Broadband Act, a consumer protection regulation aimed at helping low-income state residents access broadband, is implicitly preempted by the Federal Communications Act when broadband is classified as a Title I information service, as it was under the now-superseded 2018 FCC order.
New York Attorney General, Letitia James, has been advocating for the authority to regulate ISPs in her state, arguing that federal law does not preempt their jurisdiction. If the Supreme Court supports James’ position and chooses not to hear the case, New York has made a commitment to enforce the law.
New York Attorney General Letitia James has recently submitted a brief to the Supreme Court, urging them to deny the petition filed by Internet Service Providers (ISPs) in August. The ISPs are seeking a review of a previous ruling that favored New York’s Affordable Broadband Act. James is advocating for the court to maintain the lower court’s decision.
James’ brief presented several reasons for denying the petition filed by the ISPs.
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- The case is a poor vehicle for addressing the preemption issue, as the Federal Communications Commission’s classification of broadband services is currently in flux.
- The Second Circuit’s ruling does not conflict with any other circuit court decisions.
- The decision does not raise any significant nationwide concerns, as the ABA is a specific consumer-protection regulation, not a broad public-utility-style regulation.
- The ruling is legally sound because Congress did not express a clear intent to preempt state regulation of broadband as an information service.
“The petition signed by James stated that the decision is not in conflict with any decision of another court of appeals or any other court. In fact, two other courts of appeals support the Second Circuit’s stance that federal law does not broadly preempt state regulations of Title I information services.”
According to James, in her brief, the ABA does not aim to regulate rates in a conventional manner. Instead, it serves as a means of safeguarding consumers, particularly low-income residents, by ensuring their access to vital broadband services. James further asserts that the law does not impede the broader rate-setting authority of ISPs.
ACA Connects, CTIA, and the New York State Telecommunications Association, among other industry groups, have been actively challenging the law. They argue that the FCC’s 2018 order, which classified broadband as a Title I information service, limited the ability of states to regulate broadband pricing. The ISPs initially achieved success in blocking the ABA in the U.S. District Court for the Eastern District of New York.
