Second Circuit

N.Y. Attorney General Wants Supreme Court to Back Off State Law

Says high court should allow N.Y. to enforce the Affordable Broadband Act, which requires 25 Mbps for $15/month or 200 Mbps for $20/month

Jericho Casper

Oct 17, 2024 — 3 min read

Photo of New York Attorney General Letitia James, by Richard Drew/AP

WASHINGTON, Oct. 17, 2024 – New York state is urging the Supreme Court to toss out a challenge to its 2021 law that requires Internet Service Providers to offer low-cost plans to low-income New Yorkers. Much of the case centers on the legal classification of ISPs and the scope of state power under various readings of federal law.

N.Y Brief Opposing Supreme Court Review of State Law

An order by the Federal Communications Commission (FCC) issued in 2018 classified broadband internet as an information service subject to Title I of the Communications Act—a statutory framework under which Congress gave the FCC only limited regulatory authority and thus left ample room for States to regulate. The 2018 Order has now been superseded by a new FCC order that classifies broadband as a telecom-munications service subject to Title II of the Communi-cations Act—a statutory framework under which Congress gave the FCC broader regulatory authority. The new FCC order is temporarily stayed as a result of separate litigation not at issue here. The question presented is: Whether New York’s Affordable Broadband Act, a consumer-protection regulation that helps low-income state residents obtain broadband access, is impliedly 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the Federal Communications Act when broadband is classified as a Title I information service, as it was under the now-superseded 2018 FCC order.

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New York Attorney General Letitia James has fought for the power to oversee ISPs, claiming her state has not been preempted by federal law. If the Supreme Court agrees with James and declines to take the case, New York has promised to begin enforcing the law.

In a brief filed Wednesday, James urged the Supreme Court to reject a petition filed in August by ISPs’ seeking the high court’s review of a lower court’s ruling in favor of New York's Affordable Broadband Act.

Post tagged in

Second Circuit Digital Inclusion broadband affordability Letitia James Supreme Court New York ABA FCC U.S. District Court for the Eastern District of New York ACA Connects CTIA New York State Telecommunications Association