New York Urges SCOTUS: Don't Take Affordable Broadband Case
Although the regulatory status of broadband is “in flux,” the U.S. Supreme Court shouldn’t further delay New York state’s enforcement of a 2021 affordable broadband law, the state’s Attorney General Letitia James (D) said Tuesday. James submitted briefs in case 24-161 opposing ISP groups’ petition for a writ of certiorari and application seeking a stay of the New York Affordable Broadband Act (ABA). “The equities and the public interest weigh heavily in favor of allowing the ABA -- duly enacted consumer-protection legislation that aids the State’s most vulnerable residents -- to take effect without further delay,” wrote James.
New York’s law, requiring $15 monthly plans with 25 Mbps download and 3 Mbps upload speeds for qualifying low-income households, is a target of a joint challenge from CTIA, NTCA, USTelecom, ACA Connects, the Satellite Broadcasting and Communications Association and the New York State Telecommunications Association. NCTA and the Multicultural Media, Telecom and Internet Council last month filed amicus briefs supporting the ISP groups (see 2409160031).
New York enacted the ABA while broadband was Title I, but earlier this year the FCC reclassified broadband as Title II. However, one day after that FCC order, the 2nd Circuit U.S. Court of Appeals issued a decision upholding the ABA under Title I (see 2404260051). Later, the 6th Circuit stayed the FCC’s reclassification order, which at least temporarily preserved the Title I regime. Amid this uncertainty, the ISP groups appealed the 2nd Circuit decision to SCOTUS while simultaneously asking the high court to hold off its review until the court system finishes reviewing the FCC order (see 2408130021).
SCOTUS "should deny certiorari because the federal framework (Title I or Title II) applicable to broadband is in flux, rendering this case an exceedingly poor vehicle to review the question presented here, i.e., whether Congress preempted state regulation of broadband when it is classified as a Title I information service,” said New York’s brief opposing the cert petition. The 6th Circuit’s temporary stay of the FCC reclassification order isn’t “a decision on the merits and depended heavily on equitable considerations,” wrote James, adding that a different panel will make the merits decision and could take a different view.
Meanwhile, there’s no basis for ISP groups’ request "to hold their petition (or grant it and delay briefing and argument) pending this Court’s adjudication of a hypothetical petition seeking certiorari review of the Sixth Circuit’s future merits decision -- whichever way that decision comes out,” said James. “The underlying legal issues in the Sixth Circuit case are entirely distinct from the legal issues in the current case.” The 6th Circuit case is about whether Congress gave FCC authority to reclassify broadband as Title II, but the 2nd Circuit didn't address that question, the AG said. "Moreover, the Sixth Circuit case does not concern preemption of state laws at all -- let alone preemption of laws regulating broadband when it was classified as a Title I information service.”
The petitioners' delay request “would not only be based on speculation about future events, but also would potentially be very lengthy and highly prejudicial to respondent,” added James. While the 6th Circuit is set to hear oral argument Oct. 31, “a merits decision is unlikely to issue for several months, at minimum, because of the complexity of the numerous consolidated petitions that the Sixth Circuit must resolve,” the New York AG said. “And after that decision issues, there would be further delay to await any petition for certiorari and this Court’s resolution of such petition.” All told, it could take “months or even years,” according to James.
New York gave three other reasons for denying cert. First, there’s no circuit split, said James: "To the contrary, two other courts of appeals agree with the Second Circuit that federal law does not broadly preempt state regulations of Title I information services."
Second, the appeals court decision didn't "implicate important matters of nationwide concern," said the AG: The ABA "is not, as petitioners incorrectly suggest, 'public-utility-style' regulation of rates charged to all broadband users, but rather a consumer-protection regulation to ensure that affordable broadband access is available to the neediest state residents." Also, the state law won't have negative economic effects on broadband providers because New York's three largest ISPs already sell an affordable service to low-income consumers "irrespective of the ABA," said James: And smaller providers can seek an exemption.
Third, petitioners’ field preemption argument fails because "Congress has expressed no intent -- much less the requisite clear and manifest intent -- to preempt state regulation of Title I information services.” Congress "gave the FCC only limited authority over information services," allowing states to exercise their police powers. James added that the ISP groups “expressly abandoned in the court of appeals the conflict preemption argument they raise here, which is meritless in any event.”
Also, the Supreme Court shouldn’t grant a stay or injunction barring enforcement pending resolution of the cert petition, argued the New York AG in a separate response to plaintiff’s stay request Wednesday. SCOTUS is unlikely to grant cert, but even if it did, the stay applicants would be unlikely to prevail, said James.