TechFreedom Supports SCOTUS Review of N.Y. Affordable Broadband Act
The 2nd U.S. Circuit Court of Appeals misread the 1996 Telecom Act when it ruled that the federal statute doesn't preempt the New York Affordable Broadband Act, TechFreedom said in an amicus brief Friday at the U.S. Supreme Court, which…
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supported ISP associations seeking SCOTUS review. The 2021 state law required $15 monthly plans with 25 Mbps download and 3 Mbps upload speeds for qualifying low-income households. The 2nd Circuit upheld the law based on Title I regulation of broadband a day after the FCC reclassified it as Title II, a decision that the 6th Circuit later stayed. "New York was not free to ignore the deregulatory aims Congress codified in Title I,” the think tank argued in its brief. "Congress wants Title I information services to flourish under a light-touch regulatory regime. New York’s law imposing rate regulations on broadband is conflict-preempted, and a divided panel of the Second Circuit erred in holding otherwise." The 2nd Circuit incorrectly assumed that "because there is express preemptive authority in Title II, there can be no implied preemptive authority in Title I,” said TechFreedom. “There is no rule by which preemption may be implied when Congress elects to regulate, but must be express when Congress elects not to regulate.” It added that allowing New York to treat broadband like common carriage would permit the state to treat any Title I information service, including email and text messaging, the same way.