• by Wendy Davis  @wendyndavis, September 13, 2024

For more than three years, broadband providers have been battling New York state officials in court over a law that requires carriers to offer $15 a month service to low-income residents.

The 2nd Circuit Court of Appeals upheld that law by a 2-1 vote in April, but the broadband industry says the decision conflicts with federal policy and wants the Supreme Court to intervene and strike down the law. The CTIA--The Wireless Association, ACA Connects--America's Communications Association, US Telecom--The Broadband Association, NTCA--the Rural Broadband Association and others argued in a petition filed last month with the Supreme Court that broadband is an interstate service that can only be regulated by the federal government.

The appellate court's decision “threatens to spark a nationwide, state-by-state race to dictate the prices at which broadband service is sold to consumers,” those groups wrote in their request for Supreme Court review.

The organizations added that even though Federal Communications Commission has attempted to pass other broadband regulations -- such as the net neutrality rules -- that agency never regulated broadband pricing.

On Friday, outside groups including the libertarian organization TechFreedom backed the broadband industry's request, arguing in a friend-of-the-court brief that the 2nd Circuit ruling will result in “catastrophic consequences.”

TechFreedom contends that states have no power to regulate “information” services that are covered by Title I of the Communications Act.

(In 2021, when New York passed the Affordable Broadband Act, broadband was considered a Title I information service. Since then, the FCC reclassified broadband access as a Title II “telecommunications” service, which is subject to common carrier laws. But the 6th Circuit Court of Appeals recently blocked that move, and it's not yet clear whether the new classification will hold.)

TechFreedom argues that New York's bid to regulate broadband rates, if accepted in court, “would allow intrusive state regulation of all Title I information services,” including email.

The group writes: “Under New York’s theory, states could impose market entry or exit requirements, rate regulations, and many other onerous regulations on email, text messaging, and much more. That would be a disaster for the Internet, for technological progress, and for society.”

The Chamber of Commerce likewise argues in a separate brief that New York has no authority to set broadband prices.

“The laudable goal of affordable broadband does not justify unlawful and economically harmful tactics undertaken by states that disagree with the federal regulatory approach,” that group argues in its friend-of-the-court brief. “New York’s heavy-handed and retrograde ratemaking regime is neither lawful nor economically sound.”

New York officials are expected to make their case to the Supreme Court by mid-October.