NCTA, MMTC Support Supreme Court Review of N.Y. Affordable Broadband Act

Title I or Title II of the Communications Act would bar the New York Affordable Broadband Act (ABA), said amici supporting ISP groups in briefs Friday at the U.S. Supreme Court. NCTA, a cable industry group that didn’t join the original May 2021 challenge that several national telecom associations filed in a district court, said the ABA “would impose unprecedented and unlawful rate regulation on broadband services.” The Multicultural Media, Telecom and Internet Council (MMTC) also condemned the state law. “If the ABA becomes effective, it will achieve the opposite of what it purports to accomplish, making it harder for communities of color to subscribe to broadband.”

New York has until Oct. 15 to answer ISP groups’ petition for writ of certiorari and application seeking a Supreme Court stay of the state’s Affordable Broadband Act, the court ordered Sept. 5 in case 24-161. They were originally due this month, but the state requested delays in part to give it time to respond to the amicus briefs (see 2409040022).

Petitioners last month asked SCOTUS to pause the case until the courts finish reviewing the FCC’s order reclassifying broadband from Title I to Title II, a decision that was stayed by the 6th U.S. Circuit Court of Appeals (see 2408130021). The petitioners in the New York case are CTIA, NTCA, USTelecom, ACA Connects, the Satellite Broadcasting and Communications Association and the New York State Telecommunications Association.

If the courts keep broadband Title I, then the 2nd Circuit’s “decision will encourage States to dictate broadband prices and thereby contravene federal law,” said NCTA's brief. But New York’s law also wouldn't be allowed under Title II, the cable group noted. "Just as the existing information-service classification for broadband precludes State rate regulation, the FCC’s express rejection of rate regulation in its recent broadband reclassification order would preempt States from contravening that determination if that order were to take effect.”

Broadband classification matters not, agreed MMTC in its brief. “The FCC’s intended approach to regulation of broadband has fundamentally shifted during the pendency of this case, but under each such framework the agency has foresworn regulating broadband prices. This Court should not permit New York to undermine the bipartisan consensus against broadband rate regulation.”

Even so, NCTA supported delaying the case. SCOTUS should either (1) hold the cert petition until the 6th or 2nd circuit confirms Title I classification of broadband, or (2) grant the petition but delay briefing and argument until the reclassification case is resolved, said the cable association.

The 2nd Circuit's decision upholding the state law "turns the Communications Act upside down, replacing a nationwide light-touch regulatory framework for broadband with a state-by-state patchwork centered on onerous public utility regulation,” wrote NCTA: That would chill investment. NCTA disagreed with the 2nd Circuit panel ruling that while the FCC lacks authority under Title I to regulate rates, states may do so in the federal government's absence. "In holding that the Communications Act forbids federal common-carrier regulation -- but permits state common-carrier regulation -- of broadband service, the Second Circuit’s decision subverts Congress’s intent to ensure a light-touch regulatory framework for broadband,” said NCTA.

"While presumably well-intentioned," the New York law "is unavoidably inimical to the closure of the digital divide,” wrote MMTC. The state prepared no “meaningful analysis” to determine the law’s broadband price caps, which don’t account for providers’ cost recovery, future deployment or current broadband availability, it said. "Rate caps like the ABA’s serve to unwind economic assumptions that made previous service pricings viable. A negative feedback loop of reduced revenue, decreased investment, and price hikes for nonqualifying customers is foreseeable.”

The U.S. Chamber of Commerce "opposes efforts to treat the internet like a public utility and to create a disparate patchwork of state laws regulating inherently interstate networks and services,” said the business group’s brief. "The laudable goal of affordable broadband does not justify unlawful and economically harmful tactics undertaken by states that disagree with the federal regulatory approach. New York’s heavy-handed and retrograde ratemaking regime is neither lawful nor economically sound.” The Chamber added, "Congress has had more than a century to modify the interstate/intrastate scheme if it desired,” but “instead has continually endorsed it in the communications context -- in 1887, 1910, 1912, 1927, 1934, and 1996.”

The Digital Progress Institute fears the ABA "will only widen the digital divide rather than narrow it,” said the nonprofit’s brief. "Because the reasoning of the Second Circuit majority runs afoul of contrary decisions of the Eighth and D.C. Circuits, this Court must resolve this split among the circuits.” The institute cited the D.C. Circuit’s 1982 decision upholding FCC preemption of states regulating customer premises equipment (Computer and Communications Industry Association v. FCC) and the 8th Circuit’s 2018 opinion upholding the FCC's preemption of states regulating VoIP (Charter Communications v. Minnesota PUC).

"Nonregulation of rates is just as valid a federal objective as intrusive regulation,” added the institute. "Allowing states to seize broad authority to regulate interstate communications services ... would wreak havoc on [a] carefully wrought congressional scheme.” TechFreedom supported SCOTUS review in another amicus brief Friday (see 2409130034).