Four recent members of the Federal Communications Commission, representing both sides of the political aisle, have filed with the Second Circuit Court of Appeals an Amicus Curiae brief in response to the state Attorney General's appeal of the lower court decision in New York State Telecommunications Association v. James.
In their submission, the ex-Commissioners urge the Second Circuit to affirm the U.S. District Court for the Eastern District of New York's conclusion that a New York state law prescribing the prices that broadband providers may charge low-income households constitutes an impermissible attempt to regulate interstate communications rates.
The Affordable Broadband Act (ABA) is a New York state statute that was passed in early 2021. It requires providers of high-speed Internet access operating in New York to make available to eligible low-income households service at specific speeds and, critically, prices: 25 megabits per second (Mbps) downstream for $15 per month and 200 Mbps downstream for $20 per month. It also mandates that broadband providers "make all commercially reasonable efforts to promote and advertise the availability of" these plans.
As Free State Foundation Director of Policy Studies and Senior Fellow Seth L. Cooper noted in "Court Halts New York Price Controls on Broadband Internet Services: California's Net Neutrality Law Should Suffer Similar Fate," a June 2021 Perspectives from FSF Scholars, the U.S. District Court for the Eastern District of New York earlier that month appropriately enjoined the state of New York from enforcing the ABA.
Specifically, the court held (1) that the ABA regulates rates; (2) that "rate regulation is a form of common carrier treatment"; and (3) that because the FCC has classified broadband as an "information service" rather than a "telecommunications service" (that is, a common carrier offering), the ABA "conflicts with the implied preemptive effort of both the FCC's 2018 [Restoring Internet Freedom Order] and the Communications Act."
For a detailed discussion of the conflict preemption issues raised by the ABA, please see Mr. Cooper's January 2022 Perspectives, "State-Level Price Controls on Broadband Conflict With Federal Policy: Court Should Affirm the Preemptive Force of the FCC's 2018 Order."
In their friend-of-the-court brief, Former FCC Chairman and Commissioner Ajit Pai, former Acting Chairwoman and Commissioner Mignon Clyburn, and Former Commissioners Jonathan Adelstein and Michael O'Rielly express their agreement with the district court's conclusion. In doing so, they focus on the big picture:
While much ink has been spilled debating whether broadband is an information service that is regulated under Title I of the Communications Act … or a telecommunications service that is regulated under Title II …, that question does not determine the proper resolution of this case. Whatever the answer, broadband remains an interstate communications service, and broadband rates may not be regulated by state governments.
A copy of their brief is available here.
Posts
