• by Wendy Davis  @wendyndavis, June 21, 2021

Earlier this month, a federal judge blocked New York state from requiring broadband providers to offer $15-a-month service to low-income households.

The broadband industry now says that ruling supports its quest to block California's net-neutrality law, which prohibits broadband providers from blocking or throttling content, charging higher fees for prioritized delivery, and exempting certain data from customers' monthly caps.

In a letter dated Thursday, lawyers for broadband trade groups tell the 9th Circuit Court of Appeals that U.S. District Court Judge Denis Hurley in Central Islip, New York “squarely rejected” the same arguments that California has made in defense of its net neutrality rules.

In the New York matter, Hurley, a George H.W. Bush appointee, said in his written opinion that the Federal Communications Commission's 2018 repeal of the Obama-era net-neutrality rules effectively stripped states of the authority to regulate broadband service.

In 2018, the FCC declared broadband an “information” service and revoked a set of common-carrier regulations that had been imposed during the Obama era -- including bans on blocking and throttling service and on paid prioritization.

Hurley wrote that the FCC's 2018 order “does not tender jurisdiction to the states to regulate interstate broadband providers as common carriers.”

He added that New York's $15-a-month mandate “stands as an obstacle to the accomplishment and execution of the FCC’s reasoned decision to assure interstate broadband providers that no common-carrier rate regulations await them beyond the horizon.”

A spokesperson for the New York Attorney General declined to comment on the ruling.

California passed its net neutrality law shortly after the FCC revoked the Obama-era rules. The broadband industry groups ACA Connects--America's Communications Association, CTIA--The Wireless Association, NCTA--The Internet & Television Association and USTelecom--The Broadband Association challenged the California measure in federal court, arguing that broadband is an interstate service, and that the FCC's repeal reflects a national de-regulatory policy that overrides contrary state policies.

U.S. District Court Judge John Mendez in Sacramento rejected those argument earlier this year, when he refused to prohibit California from enforcing its rules.

The broadband industry is now appealing that decision to the 9th Circuit.

“The FCC acted within its statutory authority when it applied its policy judgment and eliminated the conduct rules California has reimposed,” the carriers wrote in papers filed with the appellate court in April. “California is no freer to disregard the FCC’s policy objectives ... than it may ignore congressional intent.”

California Attorney General Rob Bonta, along with a broad array of outside companies and advocates, recently urged the 9th Circuit to uphold the state law.

“Congress has not established a federal regulatory regime that bars the states from taking steps to safeguard access to something as essential as the Internet,” Bonta argued in papers filed last month with the 9th Circuit.

John Bergmayer, legal director at the advocacy group Public Knowledge -- which supports California's law -- notes that judges other than Hurley have said states retained the power to issue broadband regulations after the FCC's 2018 order.

In addition to Mendez, U.S. District Court Lance Walker in Bangor, Maine refused to block a state broadband privacy law requiring providers to obtain users' opt-in consent before using their web-browsing data for ad targeting.

That privacy law largely recreated Obama-era FCC rules that were an offshoot of the former net-neutrality regulations. Congress repealed those rules in 2017, without waiting for the FCC to rescind them as part of its net-neutrality revocation.

Among other arguments, the broadband industry said Maine's law conflicted with the decision to repeal the FCC's Obama-era privacy rules. Walker rejected that argument, writing that the repeal didn't in itself create a new federal policy.

The 9th Circuit could hear arguments about California's net-neutrality law as early as September.