ISPs Ask Supreme Court to Strike Down N.Y. Affordable Broadband Law
The state's attorney general agreed not to enforce the law while the Supreme Court reviews their request.
WASHINGTON, August 8, 2024 – Trade groups for Internet Service Providers plan to ask the Supreme Court next week to strike down a New York law mandating affordable broadband prices for low-income consumers.
Supplement to an Application for Emergency Stay
The groups reached an agreement with the state’s attorney general not to enforce the law while the high court considered that request, according to a letter filed with the Supreme Court’s clerk Thursday.
But the office of Attorney General Letitia James said it planned to enforce the law in the event the Supreme Court agreed to hear the ISPs’ appeal but denied their request for a stay. On Aug. 2, the ISP groups filed an emergency stay request with Associate Supreme Court Justice Sonia Sotomayor.
The ISPs lost a legal challenge to the law, which requires monthly prices of $20 or lower for eligible subscribers, in the Second Circuit in April. That court found broadband’s status as a Title I service under the Communications Act, which gives the Federal Communications Commission less sweeping authority, gave states the authority to step in and regulate broadband rates if they chose.
That decision came down one day before the FCC reinstated net neutrality rules, classifying broadband as a Title II service subject to more oversight from the commission. That included rate regulation, which the agency chose not to enforce. ISPs and commission Republicans argued that would preempt the New York law, but the agency's Democratic majority attempted to avoid that by drawing a distinction between "affordability programs" and rate regulation in the order.
Industry groups told Second Circuit judges in May that they would hold off from asking for a rehearing because they had reached a tentative deal with James's office.
The terms of that agreement, still not entirely public, involved the New York AG agreeing not to enforce the law temporarily in light of the net neutrality order. That agreement was officially extended on August 7 to include holding off on enforcing the law until 30 days after the court hands down a decision on the ISPs’ petition for writ of certiorari, according to Thursday's filing with the Supreme Court.
That petition won’t come until August 12, the industry groups wrote, but they outlined their argument in a separate request for the Supreme Court to pause the Second Circuit’s ruling.
Like they did in the Second Circuit case, the groups argued that in denying rate-setting power to the FCC, Title I of the Communications Act also preempted any state's authority to do so.
The agency’s net neutrality order has since been stayed after an industry challenge in the Sixth Circuit, with judges citing the major questions doctrine articulated by the Supreme Court in 2022. Oral arguments in that case are slated for late October.
