ISPs, N.Y. Agree to Pause Affordable Broadband Act Enforcement

New York state’s affordable internet law won’t be enforced for now, ISP associations said Monday. The industry groups won’t file a petition for rehearing or rehearing en banc of a 2nd Circuit U.S. Court of Appeals decision upholding New York state’s Affordable Broadband Act, according to a Friday letter to the court from ACA Connects, CTIA, NTCA, USTelecom and the New York State Telecommunications Association. The 2nd Circuit ruled in April that federal law doesn’t preempt the 2021 New York law requiring $15 monthly plans with 25 Mbps download and 3 Mbps upload speeds for qualifying low-income households (see 2404260051). The 2nd Circuit issued its mandate on that decision Monday. While Friday’s letter to the court didn’t say why ISPs wouldn’t seek rehearing, the industry groups previously told the court they were working toward an agreement with the state that would make a rehearing petition unnecessary (see 2406060038). In a joint statement Monday, the associations said they agreed not to seek rehearing because Attorney General Letitia James (D) agreed to “suspend enforcement of this law while the courts consider the litigation in this case.” The ISP groups said they “continue to support state and federal measures that foster broadband affordability without requiring rate regulation.” While the groups won’t seek rehearing by the 2nd Circuit, they could still seek U.S. Supreme Court review by the end of July. However, the industry groups expect a 6th Circuit ruling before that deadline -- possibly in the next three weeks -- on the FCC’s order reclassifying broadband as a Title II service, said an industry lawyer involved in the appeals process. The 6th Circuit ruling would affect how ISPs proceed on their challenge to the New York law because the 2nd Circuit decision was based on broadband as Title I, the lawyer said. If the 6th Circuit stays the FCC order, preserving a Title I world, industry would likely appeal the 2nd Circuit decision to the Supreme Court, the source said. However, if there isn’t a stay and the Title II order takes effect, industry could instead file a fresh lawsuit at the district court challenging the New York law under the Title II regime, the attorney said. AG James agreed not to enforce the state law until Aug. 21 or 14 days after a potential 6th Circuit stay of the FCC order, the attorney said. New York’s AG office referred us to the New York Public Service Commission for comment. However, a PSC spokesperson said the commission doesn’t comment on pending litigation.