On February 24, the Supreme Court issued an order denying a petition for a rehearing on its order to deny a writ of certiorari in New York State Telecommunications Association v. James. That is a wordy way of saying the Court declined to change its mind about its earlier refusal to take up the case. The Court's order leaves in place an April 2024 decision by the U.S. Court of Appeals for the Second Circuit rejecting ISPs' claims that the New York broadband price control law is subject to field preemption and conflict preemption.
The Supreme Court's prior order denying certiorari in NYSTA v. James is the subject of my blog post from December 18, 2024. Reconsideration was requested by the petitioners following the January 2, 2025, decision by the Sixth Circuit in In re: MCP No. 185. The Sixth Circuit's decision vacated the FCC's April 2024 order that reclassified broadband services as Title II "telecommunications services" and thereby left in place the agency’s prior order that classified broadband as a Title I "information service." The petitioners argued that the result in the Sixth Circuit constituted intervening circumstances substantial enough to warrant the granting of a rehearing and certiorari. But the Court declined to see it that way.
New York's Affordable Broadband Act imposes price ceilings—a type of rate regulation—on broadband Internet service providers (ISPs) offering service in the state. Under the law, ISPs must offer low-income individuals plans of $15 per month and $20 per month. After being involved in litigation, the law finally went into effect on January 15 of this year. As a result of the Supreme Court's recent order, it appears the New York price control law will remain in effect for the foreseeable future.
There are early signs that the New York law has unintended consequences for broadband competition and new deployments in that state. For more, see my February 20 FedSoc Blog post, "States Should Keep Broadband Internet Services Free From Price Controls."
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