Petition for Writ of Certiorari — New York State Telecommunications Association, Inc., et al., Petitioners v. Letitia James, Attorney General of New York

No. __-____

IN THE

Supreme Court of the United States

__________

NEW YORK STATE TELECOMMUNICATIONS

ASSOCIATION, INC., ET AL.,

Petitioners,

v.

LETITIA A. JAMES, IN HER OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF NEW YORK,

Respondent.

__________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

__________

PETITION FOR A WRIT OF CERTIORARI

__________

JEFFREY A. LAMKEN

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Avenue,

N.W.

Washington, D.C. 20037

(202) 556-2000

Counsel for Petitioner

ACA Connects – America’s

Communications Association

August 12, 2024

SCOTT H. ANGSTREICH

Counsel of Record

ALEX A. PARKINSON

ABIGAIL E. DEHART

DAREN G. ZHANG

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

(202) 326-7900

(sangstreich@kellogghansen.com)

Counsel for Petitioners

New York State Telecommunications Association, Inc., CTIA –

The Wireless Association,

NTCA – The Rural Broadband

Association, and USTelecom –

The Broadband Association

(Additional Counsel Listed On Inside Cover)

JARED P. MARX

HWG, LLP

1919 M Street, N.W.

8th Floor

Washington, D.C. 20036

(202) 730-1328

Counsel for Petitioner

Satellite Broadcasting and

Communications Association

QUESTION PRESENTED

While the Federal Communications Commission

(“FCC”) has repeatedly reversed course on whether

broadband internet access service (“broadband”) is a

common-carrier telecommunications service under

federal law, one thing has remained constant: no

government — state or federal — has regulated the

rates consumers pay for broadband service. In 2021,

New York sought to become the first government to

do so, setting $15 and $20 caps on the price that lowincome consumers pay for broadband. A federal district court correctly enjoined the New York Attorney

General from enforcing that law, but a divided panel

of the Second Circuit vacated that injunction.

The Sixth Circuit, in contrast, recently found that

challengers to the FCC’s 2024 decision to subject

broadband to common-carrier regulation are likely to

succeed on the merits and stayed that agency decision.

Therefore, at the federal level, broadband remains —

and likely will remain — an interstate information

service under Title I of the Communications Act of

1934. Congress protected those services from rate

regulation and other common-carrier treatment.

Although New York has agreed not to enforce its

rate-regulation law while the Court resolves this petition, New York continues to assert that it has the right

to do what the FCC cannot. This case thus presents

the question whether broadband services will remain

protected from common-carrier treatment and rate

regulation by individual States:

Whether the Communications Act preempts New

York’s broadband rate-regulation law.

ii

PARTIES TO THE PROCEEDINGS

Petitioners New York State Telecommunications

Association, Inc., CTIA – The Wireless Association,

ACA Connects – America’s Communications Association,

USTelecom – The Broadband Association, NTCA – The

Rural Broadband Association, and Satellite Broadcasting and Communications Association, on behalf

of their respective members that provide broadband

internet access service in New York, were the plaintiffs in the district court and the appellees in the court

of appeals.

Respondent Letitia A. James, in her official capacity

as Attorney General of New York, was the defendant

in the district court and the appellant in the court of

appeals.

iii

RULE 29.6 STATEMENTS

Pursuant to this Court’s Rule 29.6, petitioners New

York State Telecommunications Association, Inc.,

CTIA – The Wireless Association, ACA Connects –

America’s Communications Association, USTelecom –

The Broadband Association, NTCA – The Rural Broadband Association, and Satellite Broadcasting and

Communications Association, on behalf of their respective members that provide broadband internet access

service in New York, state the following:

ACA Connects – America’s Communications

Association. ACA Connects – America’s Communications Association (“ACA Connects”) states that it

has no parent corporation, and no persons, associations of persons, firms, partnerships, limited liability

companies, joint ventures, corporations, or any similar

entities have a 10 percent or greater ownership interest in ACA Connects.

CTIA – The Wireless Association. CTIA – The

Wireless Association (“CTIA”) states that it has no

parent corporation, and no persons, associations of

persons, firms, partnerships, limited liability companies, joint ventures, corporations, or any similar entities have a 10 percent or greater ownership interest in

CTIA.

New York State Telecommunications Association, Inc. New York State Telecommunications Association, Inc. (“NYSTA”) states that it has no parent

corporation, and no persons, associations of persons,

firms, partnerships, limited liability companies, joint

ventures, corporations, or any similar entities have a

10 percent or greater ownership interest in NYSTA.

NTCA – The Rural Broadband Association.

National Telecommunications Cooperative Association d/b/a NTCA – The Rural Broadband Association

iv

(“NTCA”) states that it has no parent corporation, and

no persons, associations of persons, firms, partnerships, limited liability companies, joint ventures,

corporations, or any similar entities have a 10 percent

or greater ownership interest in NTCA.

Satellite Broadcasting and Communications

Association. Satellite Broadcasting and Communications Association discloses that no publicly held

corporation owns 10 percent or more of its stock.

USTelecom – The Broadband Association.

USTelecom – The Broadband Association (“USTelecom”)

states that it has no parent corporation, and no

persons, associations of persons, firms, partnerships,

limited liability companies, joint ventures, corporations,

or any similar entities have a 10 percent or greater

ownership interest in USTelecom.

v

RELATED CASES

New York State Telecomms. Ass’n, Inc., et al. v. James,

544 F. Supp. 3d 269 (E.D.N.Y. June 11, 2021) (No.

2:21-cv-2389 (DRH) (AKT))

New York State Telecomms. Ass’n, Inc., et al. v. James,

No. 2:21-cv-2389 (DRH) (AKT), ECF No. 26 (E.D.N.Y. June

11, 2021) (preliminary injunction order)

New York State Telecomms. Ass’n, Inc., et al. v. James,

No. 2:21-cv-2389 (DRH) (AKT), ECF No. 34 (E.D.N.Y.

Aug. 10, 2021) (district court’s amended judgment)

New York State Telecomms. Ass’n, Inc., et al. v. James,

2021 WL 4472666 (2d Cir. Aug. 25, 2021) (No. 211603) (withdrawing initial appeal)

New York State Telecomms. Ass’n, Inc., et al. v. James,

101 F.4th 135 (2d Cir. Apr. 26, 2024) (No. 21-1975)

vi

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

RULE 29.6 STATEMENTS ....................................... iii

RELATED CASES .......................................................v

TABLE OF AUTHORITIES ...................................... ix

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 4

JURISDICTION.......................................................... 4

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........................................... 4

STATEMENT OF THE CASE .................................... 5

REASONS FOR GRANTING THE PETITION ....... 12

I. THE SECOND CIRCUIT ERRONEOUSLY HELD THAT STATES CAN

REGULATE INTERSTATE BROADBAND SERVICE RATES............................... 13

A. The Communications Act Occupies

the Field of All Interstate Communications Services ......................................... 13

B. The ABA Conflicts with the Communications Act ............................................. 19

II. THE PETITION PRESENTS IMPORTANT QUESTIONS OF FEDERAL LAW

WITH PROFOUND IMPLICATIONS

FOR THE FUTURE REGULATION OF

BROADBAND AND OTHER INTERSTATE INFORMATION SERVICES ............ 22

vii

A. This Case Will Determine Whether

Broadband Is Subject to a Uniform

Federal Regime or a Patchwork of

State Regulations...................................... 22

B. Broadband Rate Regulation Will Significantly Burden the Economy ............... 23

C. The Second Circuit’s Decision That

the Communications Act Does Not

Preempt State Rate Regulation Is Not

Limited to Broadband and Applies to

All Interstate Information Services.......... 25

CONCLUSION.......................................................... 26

APPENDIX:

Opinion of the United States Court of Appeals

for the Second Circuit, New York State Telecomms.

Ass’n, Inc., et al. v. James, No. 21-1975 (Apr. 26,

2024) .......................................................................... 1a

Memorandum and Order of the United States

District Court for the Eastern District of New

York, New York State Telecomms. Ass’n, Inc.,

et al. v. James, No. 2:21-cv-2389 (DRH) (AKT)

(June 11, 2021) ........................................................ 62a

Amended Judgment of the United States District Court for the Eastern District of New York,

New York State Telecomms. Ass’n, Inc., et al. v.

James, No. 2:21-cv-2389 (DRH) (AKT) (Aug. 10,

2021) ........................................................................ 95a

Statutory Provisions Involved ................................ 98a

Communications Act of 1934, 47 U.S.C.

§ 151 et seq.:

§ 2, 47 U.S.C. § 152 ...................................... 98a

§ 3(24), 47 U.S.C. § 153(24).......................... 99a

viii

§ 3(51), 47 U.S.C. § 153(51)........................ 100a

§ 10, 47 U.S.C. § 160 .................................. 100a

§ 201, 47 U.S.C. § 201 ................................ 102a

§ 202, 47 U.S.C. § 202 ................................ 103a

§ 203, 47 U.S.C. § 203 ................................ 104a

N.Y. Gen. Bus. Law § 399-zzzzz...................... 107a

ix

TABLE OF AUTHORITIES

Page

CASES

ACA Connects v. Bonta, 24 F.4th 1233 (9th Cir.

2022)..................................................................... 14

AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366

(1999) ................................................................... 21

California v. FERC, 495 U.S. 490 (1990) ................. 16

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691

(1984) ................................................................... 19

Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta,

458 U.S. 141 (1982) ............................................. 19

Hughes v. Talen Energy Mktg., LLC, 578 U.S.

150 (2016) ............................................................ 16

Interstate Nat. Gas Co. v. FPC, 331 U.S. 682

(1947) ................................................................... 17

Ivy Broad. Co. v. AT&T Co., 391 F.2d 486

(2d Cir. 1968) ....................................................... 17

Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S.

355 (1986) ...................................................5, 15, 17

MCI Telecomms. Corp. v. AT&T Co., 512 U.S.

218 (1994) ............................................................ 14

MCP No. 185 Open Internet Rule (FCC 24-52),

In re, No. 24-7000, Dkt. No. 71-2 (6th Cir.

Aug. 1, 2024) ..................................................1, 3, 5,

11, 19, 21-22

Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir.

2019)............................................................7, 21, 25

National Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005) ............... 5, 19

x

Northwest Cent. Pipeline Corp. v. State Corp.

Comm’n, 489 U.S. 493 (1989) .............................. 20

Postal Tel.-Cable Co. v. Warren-Godwin Lumber Co., 251 U.S. 27 (1919) .................................. 16

Schneidewind v. ANR Pipeline Co., 485 U.S.

293 (1988) ....................................................... 16-18

Smith v. City of Jackson, 544 U.S. 228 (2005)......... 18

Spectrum Northeast, LLC v. Frey, 22 F.4th 287

(1st Cir. 2022), cert. denied, 143 S. Ct. 562

(2023) ................................................................... 18

Transcontinental Gas Pipe Line Corp. v. State

Oil & Gas Bd. of Mississippi, 474 U.S. 409

(1986) ................................................................... 20

TV Pix, Inc. v. Taylor, 304 F. Supp. 459 (D. Nev.

1968), aff ’d mem., 396 U.S. 556 (1970)............... 18

Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) .......... 5

Western Union Tel. Co. v. Boegli, 251 U.S. 315

(1920) ................................................................... 16

ADMINISTRATIVE DECISIONS

Declaratory Ruling, Appropriate Regulatory

Treatment for Broadband Access to the

Internet Over Wireless Networks, 22 FCC

Rcd 5901 (2007) .................................................. 5-6

Declaratory Ruling, Order, Report and Order,

and Order on Reconsideration, Safeguarding and Securing the Open Internet, WC

Docket Nos. 23-230 & 17-108, FCC 24-52

(rel. May 7, 2024), https://bit.ly/4aexF00 ..... 10-12,

22-25

xi

Declaratory Ruling, Report and Order, and

Order, Restoring Internet Freedom, 33 FCC

Rcd 311 (2018) ............................................. 6-7, 19,

21, 23-24

Memorandum Opinion and Order, United

Power Line Council’s Petition for Declaratory Ruling Regarding the Classification of

Broadband over Power Line Internet Access

Service as an Information Service, 21 FCC

Rcd 13281 (2006) ................................................... 5

Report and Order and Notice of Proposed Rulemaking, Appropriate Framework for Broadband Access to the Internet over Wireline

Facilities, 20 FCC Rcd 14853 (2005)..................... 5

Report and Order on Remand, Declaratory Ruling, and Order, Protecting and Promoting

the Open Internet, 30 FCC Rcd 5601 (2015) ......... 6

CONSTITUTION AND STATUTES

U.S. Const.:

Art. I, § 8, cl. 3 (Commerce Clause) .................... 17

Art. VI, cl. 2 (Supremacy Clause) ......................... 4

Communications Act of 1934, 47 U.S.C. § 151

et seq. ........................................................ 1-5, 9-10,

12-20, 22-23, 25-26

47 U.S.C. § 152 ........................................... 5, 15-16

47 U.S.C. § 152(a) .....................................15, 19, 25

47 U.S.C. § 152(b) ................................................ 15

47 U.S.C. § 153(24) .............................................. 25

xii

47 U.S.C. § 153(51) .............................................. 19

47 U.S.C. § 160 ................................................ 6, 14

47 U.S.C. §§ 201-203 ......................................... 6, 9

47 U.S.C. § 201(b) ................................................ 14

47 U.S.C. §§ 203-205 ........................................... 14

47 U.S.C. § 230(b)(2)............................................ 21

47 U.S.C. § 230(f )(2) ............................................ 21

Federal Power Act, 16 U.S.C. § 791a et seq. ...... 15-18

16 U.S.C. § 824(b)(1)............................................ 15

Mann-Elkins Act, ch. 309, 36 Stat. 539 (1910) ... 16-17

Natural Gas Act, 15 U.S.C. § 717 et seq. ..... 15-18, 20

15 U.S.C. § 717(b)-(c) ........................................... 15

Telecommunications Act of 1996, Pub. L. No.

104-104, 110 Stat. 56 .......................... 13-14, 19, 21

28 U.S.C. § 1254(1) ..................................................... 4

N.Y. Gen. Bus. Law § 399-zzzzz ................ 1-2, 4, 7-11,

13-14, 17-19, 23

§ 399-zzzzz(1) ................................................... 7, 14

§ 399-zzzzz(2)-(4) ................................................... 7

§ 399-zzzzz(3) ......................................................... 8

§ 399-zzzzz(3)-(4) ................................................... 8

§ 399-zzzzz(6) ......................................................... 8

§ 399-zzzzz(10) ....................................................... 8

xiii

OTHER MATERIALS

Jt. Ltr. from Counsel for Pet’rs and Resp., New

York State Telecomms. Ass’n, Inc., et al. v.

James, No. 24A138 (U.S. filed Aug. 8, 2024) ...... 11

USTelecom:

2023 Broadband Pricing Index (Oct. 2023),

https://bit.ly/3Kz36YC ......................................... 24

US vs. EU Broadband Trends 2012-2019

(Apr. 21, 2021), https://bit.ly/46EOT6p .............. 25

Christopher S. Yoo, Ctr. for Tech., Innovation &

Competition, U.S. vs. European Broadband

Deployment: What Do the Data Say? (June

2014), https://bit.ly/3WTzMTp ............................ 25

Petitioners New York State Telecommunications

Association, Inc., CTIA – The Wireless Association,

ACA Connects – America’s Communications Association,

USTelecom – The Broadband Association, NTCA – The

Rural Broadband Association, and Satellite Broadcasting and Communications Association, on behalf

of their respective members that provide broadband

internet access service in New York, respectfully petition for a writ of certiorari to review the judgment of

the Second Circuit.

INTRODUCTION

Broadband internet access service (“broadband”) is

essential to our nation’s economy. It is an inherently

interstate (and international) communications service.

Like all such services, it is subject to direct regulation

solely under the federal Communications Act of 1934,

as amended. While the Federal Communications

Commission (“FCC”) has reversed course over the years

on how broadband fits within that federal statute —

and the agency’s latest flip (or flop) is stayed pending

appeal1 — one thing has stayed true: no government

has ever regulated the prices consumers pay for broadband.

New York sought to become the first to do so,

through the so-called “Affordable Broadband Act”

(“ABA”).2 The ABA requires broadband providers

(including petitioners’ members) to sell broadband to

1 See Order, In re: MCP No. 185 Open Internet Rule (FCC

24-52), No. 24-7000, Dkt. No. 71-2 (6th Cir. Aug. 1, 2024) (per

curiam) (“6th Cir. Stay Order”). The order is attached as Exhibit

6 to petitioners’ recent stay application, No. 24A138 (Aug. 2,

2024). The exhibits to that application that are cited herein are

referred to as “Stay App. Ex. __.”

2 That is the name New York gave the law in litigation, although

the legislature did not give the law that name. App. 107a.

2

qualifying low-income households at $15 per month

(or $20 per month for a higher-speed offering). A

federal district court enjoined that law shortly before

it was to take effect in June 2021, finding that petitioners had shown irreparable injury and were likely

to succeed on the merits of their preemption claims.

In April 2024, a panel of the Second Circuit, by a 2-1

vote, vacated that injunction. The majority held that,

while the Communications Act forbids the FCC from

subjecting interstate information services to commoncarrier regulation (including rate regulation), it leaves

States free to regulate the rates consumers pay for

those same interstate information services.

The Second Circuit majority erred, and the dissenting judge and district court were correct: the Communications Act preempts States from regulating the

prices consumers pay for this critical interstate

communications service. Both field and conflict

preemption apply here.

First, in the Communications Act, Congress asserted

exclusive federal control of all interstate communications services. That exclusive control applies equally

to services Congress treated as common-carrier services and to those it protected from such treatment.

And the preempted field includes rate regulation — a

core feature of public-utility regulation.

Second, even if the Communications Act permitted

some direct state regulation of interstate information

services, the ABA conflicts with Congress’s prohibition on subjecting those services to common-carrier

treatment. Congress’s prohibition reflects its view

that the optimal regulatory regime for interstate

information services is the absence of heavy-handed,

public-utility-style regulation. It does not, as the Second Circuit concluded, reflect an invitation to States

3

to subject interstate communications services to that

kind of regulation in the FCC’s stead.

The issue this case presents is of exceptional importance. While the current FCC would treat broadband

as a public utility — after many years of non-commoncarrier regulation during which broadband has flourished — that decision is stayed. A Sixth Circuit panel

unanimously concluded that petitioners are likely to

succeed under the major-questions doctrine and that

common-carrier regulation would cause their members

irreparable harm. See 6th Cir. Stay Order at 5-7. As

a result, broadband remains a non-common-carrier,

interstate information service while that appeal goes

forward and will likely remain so when that appeal

ends following accelerated briefing and oral argument

scheduled for the week of October 28, 2024.

The upshot of the Sixth Circuit and Second Circuit

decisions is that each State can now do what the FCC

cannot — subject an interstate information service to

common-carrier regulation, including rate regulation.

A world in which States can countermand Congress’s

preclusion of rate regulation for such services will end

long-standing national uniformity for broadband, to

the detriment of providers, consumers, and the nation.

Nor will the harms end with broadband. The many

services that rely on broadband to reach consumers —

such as video and music streaming, cloud storage,

email and messaging, and video conferencing — are

all themselves interstate information services. The

Second Circuit’s reasoning means the Communications Act also does not prevent States from regulating

the prices those providers charge for those online

services.

This Court should grant the petition and reverse the

Second Circuit’s judgment, ensuring that broadband

4

remains subject to uniform, national regulation.

Given the interrelationship between this case and

the Sixth Circuit’s review of the FCC’s recent order,

however, the most orderly approach would be for this

Court to do so after the Sixth Circuit or (if someone

seeks and this Court grants certiorari) this Court first

confirms the Title I classification of broadband. The

Court may do so either by holding this petition or by

granting it and delaying briefing or argument so the

Court can address this issue alongside or after resolution of challenges to the FCC’s order.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-61a)

is reported at 101 F.4th 135. The memorandum and

order of the district court (App. 62a-94a) is reported at

544 F. Supp. 3d 269.

JURISDICTION

The court of appeals entered its judgment on April

26, 2024. On July 16, 2024, Justice Sotomayor extended the time for petitioning for a writ of certiorari

to and including September 23, 2024. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Supremacy Clause of the United States Constitution provides in relevant part:

This Constitution, and the Laws of the United

States . . . , shall be the supreme Law of the Land.

Relevant provisions of the Communications Act of

1934 and New York’s Affordable Broadband Act, N.Y.

Gen. Bus. Law § 399-zzzzz, are reproduced at App.

98a-111a.

5

STATEMENT OF THE CASE

Statutory Framework. In 47 U.S.C. § 152, the

Communications Act “divide[s] the world . . . into two

hemispheres — one comprised of interstate service,

over which the FCC would have plenary authority, and

the other made up of intrastate service.” Louisiana

Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 360 (1986)

(emphasis added). While “actions taken by federal

and state regulators within their respective domains”

can, “in practice,” “affect” the “other ‘hemisphere,’ ” id.

(emphasis added), federal law preempts state laws

regulating intrastate service where it is “not possible”

for separate intrastate and interstate regimes to

co-exist, id. at 375-76 & n.4 (emphasis omitted).

Historically, the FCC concluded that broadband

is an information service subject to Title I of the

Communications Act, making broadband “statutorily

exempt from common carrier treatment” under Title II

of that Act (including ex ante rate regulation). Verizon

v. FCC, 740 F.3d 623, 654 (D.C. Cir. 2014); see also 6th

Cir. Stay Order at 3-4 (recounting this history).

In 2005, this Court upheld the FCC’s classification

of cable broadband as an information service. See National Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967, 978 (2005). For the next decade,

the FCC held that other forms of broadband are information services because they similarly provide only a

single integrated service.3

3 See, e.g., Report and Order and Notice of Proposed Rulemaking, Appropriate Framework for Broadband Access to the Internet

over Wireline Facilities, 20 FCC Rcd 14853 (2005); Memorandum

Opinion and Order, United Power Line Council’s Petition for

Declaratory Ruling Regarding the Classification of Broadband

over Power Line Internet Access Service as an Information Service,

21 FCC Rcd 13281 (2006); Declaratory Ruling, Appropriate

6

In 2015, the FCC continued to conclude that broadband internet access is a single, integrated service

offering, but for the first time classified that offering

as a telecommunications service subject to commoncarrier regulation under Title II. See 2015 Order4

¶ 47. But even though Title II includes rate regulation

and tariff filing among its provisions, see 47 U.S.C.

§§ 201-203, the FCC used its statutory forbearance

authority, see id. § 160, to prevent those “ex ante rate

regulation” provisions from applying to broadband.

2015 Order ¶ 441. The FCC concluded that rate

regulation is inconsistent with federal policy and unnecessary to “protect Internet openness” or “promote

fair competition.” Id. ¶¶ 443, 449.

In 2018, the FCC returned to its pre-2015 approach,

classifying broadband as a single offering of an interstate information service immune from all commoncarrier regulation, including rate regulation. See 2018

Order5 ¶¶ 2, 18, 65. The FCC noted that even the

threat of future rate regulation under the 2015 Order

— notwithstanding forbearance — risked undermining

“investments in broadband infrastructure,” contrary

to federal policy. Id. ¶ 101. To protect its decision

from any possibility of state-level undermining, the FCC

adopted a “Preemption Directive,” which declared

that the 2018 Order preempted all state regulation

of broadband, even purely intrastate regulations that

Regulatory Treatment for Broadband Access to the Internet Over

Wireless Networks, 22 FCC Rcd 5901 (2007).

4

Report and Order on Remand, Declaratory Ruling, and

Order, Protecting and Promoting the Open Internet, 30 FCC Rcd

5601 (2015) (“2015 Order”).

5 Declaratory Ruling, Report and Order, and Order, Restoring

Internet Freedom, 33 FCC Rcd 311 (2018) (“2018 Order”).

7

did not conflict with the federal regime. See id.

¶¶ 194-204.

The D.C. Circuit upheld the FCC’s classification

of broadband as a Title I information service. See

Mozilla Corp. v. FCC, 940 F.3d 1, 26, 72-73 (D.C. Cir.

2019) (per curiam). Yet a 2-1 majority vacated the

FCC’s Preemption Directive, holding that the FCC

lacked statutory authority “to wipe out a broader

array of state and local laws than traditional conflict

preemption principles would allow.” Id. at 74. But

the majority denigrated as a “straw man” and

“confuse[d],” id. at 85, the dissenting judge’s contention that the majority’s vacatur meant that “each of

the 50 states is free to impose” the “heavy hand of Title

II for the Internet,” id. at 95 (Williams, J., concurring

in part and dissenting in part). Instead, where state

regulation of broadband service “actually undermines”

the Title I regime to which the 2018 Order returned

broadband, “conflict preemption” would apply. Id.

at 85.

The District Court Enjoins New York’s Law. In

2021, New York enacted the ABA, a first-of-its-kind

broadband rate regulation. The ABA requires all

broadband providers to sell broadband (other than

mobile broadband) to qualifying low-income households at a cost of no more than $15 per month (for

download speeds of at least 25 Mbps) or $20 per month

(for download speeds of at least 200 Mbps). See N.Y.

Gen. Bus. Law § 399-zzzzz(2)-(4). The law defines the

“broadband service” it regulates as “a mass-market

retail service that provides the capability to transmit

data to and receive data from all or substantially all

internet endpoints,” id. § 399-zzzzz(1) — mirroring

the FCC’s long-standing definition of broadband internet access service, see 2018 Order ¶ 21.

8

The ABA also limits price increases. See N.Y.

Gen. Bus. Law § 399-zzzzz(3)-(4). And it also restricts

the terms on which providers can offer service. For

instance, the ABA requires providers to sell lowincome subscribers a standalone broadband service,

separate from any telephone or television service.

See id. § 399-zzzzz(3). Providers must otherwise offer

the rate-regulated service under the same terms and

conditions they apply to market-priced offerings. See

id. § 399-zzzzz(6). The ABA authorizes the Attorney

General to enforce it, including by seeking a $1,000per-violation civil penalty. See id. § 399-zzzzz(10).

Petitioners filed a complaint and sought a preliminary and permanent injunction barring the ABA’s

enforcement. The district court issued an order

preliminarily enjoining the ABA before it took effect.

App. 62a-63a. The court found the rate regulation

would irreparably harm petitioners’ members, App.

92a-93a, and that petitioners had established a likelihood of success on the merits, under both field and

conflict preemption, App. 77a-91a. The court found

it “clear” that “the ABA is rate regulation” of an

interstate service, App. 79a, rejecting New York’s

arguments that the ABA is an intrastate “affordablepricing scheme,” App. 85a.

New York soon thereafter stipulated to a permanent

injunction — which the district court entered — and

then appealed the final judgment while dismissing

its earlier appeal of the preliminary injunction. App.

95a-97a.

The Second Circuit Vacates the Injunction. On April

26, 2024, a divided panel of the Second Circuit

reversed the district court in a 2-1 decision vacating

the permanent injunction.

The Second Circuit majority (Judges Nathan and

Merriam) first found the court had jurisdiction to

9

consider New York’s appeal. App. 2a.6 Turning to

the merits, both the majority and the dissent agreed

with the district court that, “[a]s a threshold matter,”

“the ABA is a regulation of interstate communications

services.” App. 19a n.10; see App. 57a (Sullivan, J.,

dissenting). The majority rejected New York’s argument that the ABA is a “purely intrastate” regulation

because it applies only to companies selling broadband

to New Yorkers. App. 19a n.10.

Yet the majority concluded that Congress had not

occupied the field with respect to interstate information services. App. 31a. The Second Circuit majority

recognized that the Communications Act’s “comprehensive” regulation of common carriers in Title II is

field preemptive. App. 30a (citing 47 U.S.C. §§ 201203). But the majority found that Title I, in which

Congress purposefully left interstate information services largely unregulated, left the field open for States

to regulate the rates of such services.7

The panel majority also found that conflict preemption did not bar enforcement of the ABA. The majority

6 Petitioners agree with the majority’s disposition of this juris-

dictional issue. In the district court, petitioners agreed to the

Attorney General’s proposal to convert the preliminary injunction into a stipulated final judgment imposing a permanent

injunction. Petitioners understood that the Attorney General

was not relinquishing her right to appeal that permanent injunction. And petitioners’ supplemental brief in the Second Circuit

similarly agreed that the Attorney General had preserved its

appellate rights.

7 The majority was incorrect to state that petitioners “abandoned” the breadth of their field preemption argument on appeal.

App. 18a. Rather, petitioners explained that, because rate

regulation is at the core of the preempted field, the case did

not require the Second Circuit to define the outer limits of that

field, such as whether general state laws applicable to all contracts can apply to contracts for interstate information services.

10

noted that the FCC’s conclusion that broadband is a

Title I service deprived the agency of the authority

it has over Title II services, including the authority

to impose or forbear from rate regulation. App. 31a32a. It then concluded that, because Title I does not

give the FCC rate-setting authority over interstate

information services, any state rate setting for such

services could not conflict with federal law. App. 33a34a.

Judge Sullivan dissented as to both appellate jurisdiction, App. 39a-56a, and the merits, App. 56a-60a.

As to the latter, Judge Sullivan would have found the

ABA field preempted by the Communications Act,

which “grants the FCC authority over ‘all interstate’

communication services — save for a limited set of

state-law prohibitions — while leaving to the states

the power to regulate intrastate communications.”

App. 56a. Judge Sullivan also found the ABA conflict

preempted, rejecting New York’s suggestion that,

“because the FCC currently lacks power to regulate

broadband rates, it cannot prevent states from regulating those rates either.” App. 60a.

The FCC’s Stayed 2024 Order. Shortly after the Second Circuit ruled, the FCC released its 2024 Order,8

in which the FCC reverted to its 2015 claim to have

authority to regulate broadband as a Title II commoncarrier telecommunications service. See 2024 Order

¶¶ 2, 188-189. Despite that change in classification,

the FCC adhered to its long-standing conclusion that

ex ante rate regulation of the prices consumers pay for

broadband is not in the public interest. See id. ¶¶ 267268, 386, 389 (forbearing from “all Title II provisions

8 Declaratory Ruling, Order, Report and Order, and Order on

Reconsideration, Safeguarding and Securing the Open Internet,

WC Docket Nos. 23-230 & 17-108, FCC 24-52 (rel. May 7, 2024)

(“2024 Order”), https://bit.ly/4aexF00.

11

that could be used to impose ex ante or ex post rate

regulation on [broadband] providers”).

On August 1, 2024, the Sixth Circuit granted a

motion to stay the 2024 Order pending the resolution

of challenges to that order. The Sixth Circuit panel

unanimously found that the petitioners in that case

(as here, associations with internet service provider

members) were likely to succeed on the merits of

their challenge to the 2024 Order under the majorquestions doctrine. See 6th Cir. Stay Order at 5-7.

Chief Judge Sutton also found that petitioners were

likely to succeed on their argument that “[t]he best

reading of the statute” is that Congress “classifie[d]

broadband as an information service.” Id. at 9-13

(Sutton, C.J., concurring).

Notwithstanding the Second Circuit’s decision, the

New York Attorney General agreed not to enforce the

ABA for a brief period in light of the litigation over the

2024 Order. See Stay App. Ex. 5. While New York’s

agreement was set to end on August 15, 2024 —

14 days after the Sixth Circuit stayed the 2024 Order

— New York has now agreed not to enforce the ABA

against petitioners’ members before the Court rules on

this petition.9

9 See Jt. Ltr. from Counsel for Pet’rs and Resp., New York State

Telecomms. Ass’n, Inc., et al. v. James, No. 24A138 (U.S. filed

Aug. 8, 2024).

12

REASONS FOR GRANTING THE PETITION

Whether States can set prices for interstate information services — including, but not limited to, broadband — is a question of exceptional and national importance. The Second Circuit’s 2-1 acceptance of New

York’s contention that it has that authority threatens

to spark a nationwide, state-by-state race to dictate

the prices at which broadband service is sold to

consumers. And that race is unlikely to stop there.

On the Second Circuit majority’s reasoning, the Communications Act also does not preempt States from

setting rates for paid subscription services for video

and music streaming and cloud storage, or for adsupported internet services including email and messaging. All of them are interstate information services

under federal law. See 2024 Order ¶ 131.

The Court should grant certiorari to confirm that

the federal Communications Act — not a patchwork

of state laws — governs the regulation of interstate

communications services such as broadband. The Sixth

Circuit has already concluded that challenges to the

FCC’s recent order subjecting broadband to commoncarrier regulation are likely to succeed on the merits,

so broadband is likely to remain a non-common-carrier

service under the Communications Act for the foreseeable future. If the Second Circuit’s decision were

allowed to stand, then States in that Circuit would be

free to engage in the very common-carrier regulation

that the FCC cannot. The Second Circuit’s decision

would thus allow individual States to engage in the

common-carrier regulation (including rate regulation)

that a Sixth Circuit panel has found the Communications Act likely forbids.

The Second Circuit’s decision is also wrong on the

law. Judge Sullivan, dissenting from that decision,

13

correctly concluded that Congress in the Communications Act occupied the field of interstate communications services. And Congress did so for all such

services, not merely those that Congress concluded

should be regulated like public utilities and subject to

Title II’s common-carrier regime. The ABA also conflicts with Congress’s express prohibition on subjecting interstate information services to common-carrier

regulation, including rate regulation. To conclude

otherwise would attribute to Congress an attitude of

indifference toward state regulation of communications services that is at odds with the Telecommunications Act of 1996 (“1996 Act”) that enacted that prohibition.

I. THE SECOND CIRCUIT ERRONEOUSLY

HELD THAT STATES CAN REGULATE INTERSTATE BROADBAND SERVICE RATES

A. The Communications Act Occupies the

Field of All Interstate Communications

Services

The ABA directly regulates the rates of an interstate

information service. While New York described the

ABA as intrastate regulation — and, before the

district court, denied that it was even rate regulation,

see App. 85a — all four lower court judges rejected

New York’s mischaracterization of the ABA. All

instead agreed that the ABA is a direct “regulation of

interstate communications services.” App. 19a n.10;

see App. 57a (Sullivan, J., dissenting); see also App.

86a-87a. This was correct — and inescapable —

because the ABA defines broadband as a service

that “provides the capability to transmit data to and

receive data from all or substantially all internet

14

endpoints,” N.Y. Gen. Bus. Law § 399-zzzzz(1), which

are located around the country (and the world).10

The Second Circuit majority erred in reading the

Communications Act to be field preemptive only as to

interstate communications services subject to Title II

of that Act. App. 27a-28a. For Title II services, Congress dictated a public-utility-style rate regime, with

carriers filing rates in tariffs and the FCC authorized

to assess whether those rates are unjust and unreasonable, and, if so, to dictate rates to be charged going

forward. See 47 U.S.C. §§ 201(b), 203-205. In the

1996 Act, Congress also directed the FCC to exempt

public-utility services from those statutory provisions

— by forbearing from them — when it is not in the

public interest to enforce them.11

Title I lacks the same public-utility-style rate

regime (and thus the same potential for forbearance).

The Second Circuit majority misunderstood that

absence to reflect Congress’s intent that each State

be free to decide whether to regulate interstate information service providers as public utilities. App. 29a.

Instead, as Judge Sullivan explained, the Communications Act gives the FCC “exclusive authority over

interstate communications” and has left to the States

only “the power to regulate intrastate communications.”

10 In this regard, the Second Circuit correctly decided what the

Ninth Circuit got wrong in ACA Connects v. Bonta, 24 F.4th 1233

(9th Cir. 2022). In that case, the Ninth Circuit erroneously

concluded that California’s so-called “net neutrality” law, which

used the same broadband definition as the ABA, was only “state

regulation of intrastate communications.” Id. at 1247.

11 In 47 U.S.C. § 160, Congress granted the FCC the forbearance authority that this Court had previously found it lacked in

MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218, 23334 (1994).

15

App. 56a-57a. And as district court Judge Hurley

noted, the FCC’s authority over interstate communications “would hardly be ‘plenary’ if it loses, to the

states’ gain, the right to make rules regarding certain

interstate communications services” that Congress

placed under Title I. App. 90a. Congress’s exclusion

of interstate information services from public-utility

regulation means that such rate regulation is ruled

out — not that States are free to do it in the Commission’s stead.

As Judge Sullivan explained, Section 152 divides

the field of communications into separate interstate

and intrastate spheres and “prescribes that the FCC

has exclusive authority over interstate communications.”

App. 57a. Section 152(a) grants the FCC exclusive

jurisdiction over rate regulation (among other regulations) as to “all interstate . . . communication by wire

or radio,” and Section 152(b) denies the FCC “jurisdiction with respect to . . . intrastate communication service by wire or radio.” This Court read Section 152 the

same way, finding that it “divide[s] the world . . . into

two hemispheres — one comprising interstate service,

over which the FCC would have plenary authority, and

the other made up of intrastate service, over which the

States would retain exclusive jurisdiction.” Louisiana

Pub. Serv. Comm’n, 476 U.S. at 360 (emphasis added).

The 1935 Federal Water Power Act (now known as

the Federal Power Act (“FPA”)) and the 1938 Natural

Gas Act (“NGA”) confirm the import of Section 152

in the Communications Act of 1934. Congress copied

language from Section 152 into these other statutes —

providing that federal law “shall apply” to the “interstate,” but not “intrastate,” sales of electricity and

natural gas. 16 U.S.C. § 824(b)(1) (FPA); 15 U.S.C.

§ 717(b)-(c) (NGA). This Court has repeatedly read

16

that copied language to be field preemptive. For

example, in Hughes v. Talen Energy Marketing, LLC,

this Court found that the FPA “occup[ies] an entire

field of regulation” and gives the Federal Energy Regulatory Commission (“FERC”) “exclusive authority to

regulate ‘the sale of electric energy at wholesale in

interstate commerce.’ ” 578 U.S. 150, 154, 163 (2016);

see also id. at 169 (Thomas, J., concurring in part and

concurring in the judgment) (“the text and structure

of the . . . FPA divides federal and state jurisdiction

over the regulation of electricity sales,” and “[t]hat

federal authority over interstate wholesale sales is

exclusive”). And in Schneidewind v. ANR Pipeline Co.,

this Court held that the NGA gives FERC “exclusive

jurisdiction over the transportation and sale of natural gas in interstate commerce.” 485 U.S. 293, 300-01

(1988) (collecting cases). The language in Section 152

— mirrored in the FPA and the NGA — is how the

1930s Congress stated its intent to occupy the field

and preclude state regulation of interstate services.12

Further confirmation comes from the fact that the

federal Communications Act continues the 1910

Mann-Elkins Act. This Court has twice held that the

Mann-Elkins Act preempted the field as to interstate

telegraph service. See Postal Tel.-Cable Co. v. WarrenGodwin Lumber Co., 251 U.S. 27, 30 (1919); Western

Union Tel. Co. v. Boegli, 251 U.S. 315, 316-17 (1920).

12 While a modern Congress might write field preemptive

language differently, this Court has reaffirmed decisions reading

older statutes to have preemptive effect even if, “[w]ere this a

case of first impression,” the Court might have read the statute

differently today. California v. FERC, 495 U.S. 490, 497-99

(1990) (refusing “at this late date to revisit and disturb” the

earlier preemption decision as there had been “no sufficient

intervening change in the law” to “warrant[ ] [a] departure” from

precedent).

17

Congress consolidated the Mann-Elkins Act, along

with other statutes, into the Communications Act,

carrying forward the existing field preemption. See

Ivy Broad. Co. v. AT&T Co., 391 F.2d 486, 490-91 (2d

Cir. 1968).

In concluding that the Communication Act

preempts the field only as to Title II services, the

Second Circuit majority made several errors.

First, it over-read this Court’s acknowledgment

that, because companies provide interstate and intrastate services over the same wires (e.g., local and

long-distance calling), state actions taken within the

intrastate sphere might not remain wholly within

that boundary. App. 23a (citing Louisiana Pub. Serv.

Comm’n, 476 U.S. at 375). But the majority had already (correctly) held that the ABA regulates directly

in the interstate field — it is not intrastate regulation

with some limited spillover outside of that field. Unlike the intrastate depreciation schedules this Court

held could co-exist with interstate schedules, it is not

“possible to apply different rate[ ]” regulation methods

to the same interstate broadband service via a federal

regime that lets market prices prevail and a state

regime that dictates maximum prices. Louisiana Pub.

Serv. Comm’n, 476 U.S. at 375.

Second, the Second Circuit majority was wrong to

brush aside the similarities in the Communications

Act, the FPA, and the NGA. The majority thought it

relevant that this Court’s pre-FPA and pre-NGA cases

held that the dormant Commerce Clause prohibited

state rate regulation of interstate gas and electricity

sales. See App. 25a (citing Interstate Nat. Gas Co. v.

FPC, 331 U.S. 682, 689 & n.13 (1947)). But this Court

in Schneidewind already rejected the Second Circuit

majority’s view. This Court instead found Congress’s

18

intent to preempt the field in the NGA’s text itself and

not as an “infer[ence] from the mere fact that States

were precluded from such regulation at the time of the

NGA’s enactment.” 485 U.S. at 305-06. The Second

Circuit majority also gave no weight to Congress’s

decision to copy the Communications Act’s language

into the FPA and the NGA. The obvious conclusion is

that Congress wanted that language to have the same

effect in all three laws. Cf. Smith v. City of Jackson,

544 U.S. 228, 233 (2005) (plurality) (“[W]hen Congress

uses the same language in two statutes having similar

purposes, particularly when one is enacted shortly

after the other, it is appropriate to presume that Congress intended that text to have the same meaning in

both statutes.”).

Third, the majority incorrectly found that early

instances of state regulation of cable television rates,

while cable was a Title I service, meant that Congress

did not preempt that field. As Judge Sullivan noted

in dissent, this history is “scant” and consists of one

“article noting that eleven states oversaw rate regulation of cable during the 1970s,” which is far from a

“meaningful tradition.” App. 57a n.5. In fact, the

history of cable regulation teaches the opposite lesson.

For nearly 50 years, state regulation of cable rates has

occurred only where Congress and the FCC affirmatively decided against preemption. See Spectrum

Northeast, LLC v. Frey, 22 F.4th 287, 294-96 (1st Cir.

2022), cert. denied, 143 S. Ct. 562 (2023). The sole

contrary case — TV Pix, Inc. v. Taylor, 304 F. Supp.

459 (D. Nev. 1968), aff ’d mem., 396 U.S. 556 (1970)

(per curiam) — viewed cable television as a “local

business” that was “an appendage” to any interstate

service. Id. at 463. In contrast, all four judges here

agreed that the ABA directly regulates the rates of an

interstate service.

19

B. The ABA Conflicts with the Communications Act

In the 1996 Act, Congress allowed the FCC to

“treat[ ]” telecommunications carriers, and not information services, “as a common carrier under [the

Communications Act] only to the extent that [they are]

engaged in providing telecommunications services.”

47 U.S.C. § 153(51) (emphasis added); see also National

Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 975 (2005) (“The Act regulates telecommunications carriers, but not information-service providers, as common carriers.”). In the 2018 Order,

the FCC correctly concluded that broadband is an

information service under the Communications Act.

See generally 2018 Order; see also 6th Cir. Stay

Order at 5-7. Therefore, the Communications Act,

which “shall apply to all interstate . . . communication” services, 47 U.S.C. § 152(a), forecloses publicutility, common-carrier regulation of broadband.

New York’s law conflicts with the Communications

Act. It applies common-carrier rate regulation to an

interstate information service, while Congress determined that interstate information services are exempt

from such regulation. See id. § 153(51). A “state law

stand[ing] as an obstacle to the accomplishment

and execution of the full purposes and objectives of

Congress” is preempted. Fidelity Fed. Sav. & Loan

Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982); see also

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 708

(1984) (“[W]hen federal officials determine . . . that

restrictive regulation of a particular area is not in the

public interest” — as Congress did here — “States are

not permitted to use their police power to enact such

a regulation.”).

20

The Second Circuit majority erroneously concluded

that, for conflict preemption to prevent broadband

rate regulation at the state level, broadband must

be a Title II service at the federal level and the FCC

must forbear from the Communications Act’s rateregulation provisions. App. 33a-34a. Although that

would be sufficient for broadband rates to remain free

from all government regulation, it is not necessary.

Congress need not have granted an agency regulatory

authority that it declined to use for state law to

conflict with the regime Congress enacted.

Instead, for Congress’s decision to protect interstate

information services from common-carrier regulation

to be given effect, States — no different from the FCC

— must be prohibited from imposing rate regulation.

This Court held as much in Transcontinental Gas Pipe

Line Corp. v. State Oil & Gas Board of Mississippi, 474

U.S. 409 (1986), finding that Congress’s decision to

exempt certain gas sales from public-utility regulation

under the NGA preempted States from regulating

those sales in the manner FERC could not. This Court

rejected the argument that Congress’s revision of the

NGA “to give market forces a more significant role”

reflected Congress’s “inten[t] to give the States the

power it had denied FERC.” Id. at 422. Instead, as

the Court reiterated in a later case, “Congress’s intent

. . . that the supply, the demand, and the price of deregulated gas be determined by market forces requires

that the States still may not regulate purchasers so as

to affect their cost structures.” Northwest Cent. Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493, 507

n.8 (1989).

The same is true here. Congress’s intent that

market forces determine the price of Title I services

requires that States not interfere through rate setting.

21

This Court long ago recognized that, in the 1996 Act,

Congress “unquestionably” took regulatory power

“away from the States.” AT&T Corp. v. Iowa Utils.

Bd., 525 U.S. 366, 379 n.6 (1999). It also sought “to

preserve the vibrant and competitive free market” for

broadband service, “unfettered by Federal or State

regulation.” 47 U.S.C. § 230(b)(2) (emphasis added);

see id. § 230(f )(2). That Congress was not indifferent

to whether States regulated Title I services as commoncarrier services. It rejected all such regulation of

those services. As Chief Judge Sutton put it, one must

assume “a two-faced Congress” to read the 1996 Act to

authorize common-carrier regulation of broadband,

6th Cir. Stay Order at 11 (Sutton, C.J., concurring), to

say nothing of doing so through a patchwork of stateby-state regulations.

The Second Circuit also purported to follow the D.C.

Circuit’s rejection of the 2018 Order’s Preemption

Directive — see App. 37a-38a — but reads that court’s

Mozilla decision in the exact manner its authors

warned against. The Mozilla majority said the dissent

was “confuse[d]” and attacking a “straw man” in

arguing that, if the FCC lacked authority to expressly

preempt all state broadband laws (including those

neither field nor conflict preemption forbade), States

would be free to regulate broadband providers as

common carriers. Mozilla Corp. v. FCC, 940 F.3d 1,

85 (D.C. Cir. 2019) (per curiam). Yet the Second

Circuit majority adopted that same confused position

here, without acknowledging the Mozilla majority’s

warning. App. 31a-38a.

22

II. THE PETITION PRESENTS IMPORTANT

QUESTIONS OF FEDERAL LAW WITH

PROFOUND IMPLICATIONS FOR THE

FUTURE REGULATION OF BROADBAND

AND OTHER INTERSTATE INFORMATION

SERVICES

A. This Case Will Determine Whether Broadband Is Subject to a Uniform Federal

Regime or a Patchwork of State Regulations

The Sixth Circuit’s decision that petitioners are

likely to succeed on the merits of their appeal of the

2024 Order means that broadband currently remains

free from intrusive federal common-carrier regulation

— including rate regulation — and likely will remain

so. See 6th Cir. Stay Order at 5-7. The logic of

that unanimous decision — that public-utility-style

regulation of broadband is a major question of “vast”

significance, and Congress did not “plainly authorize”

the FCC to engage in such regulation, id. at 6 — would

be inverted if, as a result, the Communications Act

were read to allow each of the 50 States to choose

whether to do exactly what the FCC cannot. And, yet,

that is precisely what the Second Circuit majority held

and the conflict that its decision presents.13

The Sixth Circuit has accelerated briefing of the

challenges to the 2024 Order, with oral argument to

occur less than three months after the stay decision.

See id. at 9. Those challenges to the FCC’s authority,

therefore, could come before this Court in short order.

13 Compare App. 33a-34a (treating Congress as giving the FCC

a choice between classifying broadband as a Title II service and

preempting state rate regulation via forbearance, or classifying

it as a Title I service open to state rate regulation) with 6th Cir.

Stay Order at 6 (Congress likely placed interstate broadband in

Title I to immunize it from common-carrier treatment).

23

The most orderly approach to resolving these critical

questions of federal and state authority over broadband would be for the Sixth Circuit or (if someone

seeks and this Court grants certiorari) this Court first

to confirm the Title I classification of broadband under

the Communications Act and then for this Court to

confirm that the Act preempts States from doing what

the FCC cannot. The Court can achieve that ordering

either by holding this petition until the Sixth Circuit’s

ruling becomes final or by granting this petition and

then delaying briefing or argument here so that this

case can be resolved alongside or following completion

of any challenges to the 2024 Order.

B. Broadband Rate Regulation Will Significantly Burden the Economy

The Second Circuit’s decision — coupled with the

Sixth Circuit’s conclusion that broadband is likely to

remain a Title I service — will likely lead to more rate

regulation absent the Court’s intervention. Other

States are likely to copy New York once the Attorney

General begins enforcing the ABA and New York

consumers can buy broadband at below-market rates.

As petitioners’ members have shown, New York’s

price cap will require them to sell broadband at a loss

and deter them from investing in expanding their

broadband networks.14 As rate regulation proliferates,

those harms will as well, stifling critical investment

in bringing broadband to unserved and underserved

areas.

The FCC likewise found in 2018 that the mere

threat of “rate regulation” risked chilling “investments

in broadband infrastructure.” 2018 Order ¶ 101.

Smaller broadband providers in particular felt the

14 See Stay App. Exs. 9-14 (provider declarations).

24

effects of that threat, “given their more limited

resources, leading to depressed hiring in rural areas

most in need of additional resources.” Id. ¶ 104. Even

the current FCC, a majority of which otherwise

supports common-carrier regulation of broadband

providers, “cannot envision” regulating broadband

rates and has made a “commitment not to do so.” 2024

Order ¶ 386.

Broadband has flourished in the United States

under a uniform, Title I regulatory regime. Broadband prices continue to decline, even as broadband

speeds and deployment steadily increase. From 2022

to 2023, the price of the most popular broadband

option declined by 10% before adjusting for inflation.15

Adjusted for inflation, that is an 18% decrease.16 That

decline is consistent with longer-term trends, which

have seen the price for the most popular broadband

package decline by nearly 55% in real terms from 2015

to 2023, while speeds have increased by more than

280%.17

As FCC Commissioner Carr recognized, dissenting

from the 2024 Order, the approach in Europe —

“where regulators have long applied centralized,

utility-style controls to their continent’s Internet

infrastructure” — has led to “sluggish European

networks suffer[ing] from chronic underinvestment.”

2024 Order at 455 (Dissenting Statement of Commissioner Carr). U.S. networks are faster than in every

country in Europe, U.S. providers invest three-fold

15

See USTelecom, 2023 Broadband Pricing Index 2 (Oct.

2023), https://bit.ly/3Kz36YC.

16 See id.

17 See id. at 3.

25

more per household than their European counterparts, and U.S. networks have bridged the digital

divide more so than in Europe when it comes to households with high-speed fixed broadband. See id. at 49394. Simply put, broadband rate regulation — the most

heavy-handed of common-carrier regulations — will

reduce private investment in American networks.18

C. The Second Circuit’s Decision That the

Communications Act Does Not Preempt

State Rate Regulation Is Not Limited to

Broadband and Applies to All Interstate

Information Services

Broadband is not the only interstate information

service the Second Circuit decision opens up to novel

rate regulation. The Communications Act covers

all interstate communication by wire or radio. See

47 U.S.C. § 152(a). And all interstate communication

services are either information services or telecommunications services — the two categories are “mutually

exclusive.” Mozilla, 940 F.3d at 19. Information

services offer the “capability for generating, acquiring,

storing, transforming, processing, retrieving, utilizing,

or making available information via telecommunications.” 47 U.S.C. § 153(24). All online services and

applications — streaming video and music, cloud storage, email and messaging, and video conferencing —

meet this definition. See 2024 Order ¶ 131.

18 Common-carrier-style regulation on broadband in Europe

has resulted in broadband investment levels that were less than

half of the levels of such investment in the United States, on

a per-household basis. See, e.g., Christopher S. Yoo, Ctr. for

Tech., Innovation & Competition, U.S. vs. European Broadband

Deployment:

What Do the Data Say? 13 (June 2014),

https://bit.ly/3WTzMTp; USTelecom, US vs. EU Broadband

Trends 2012-2019, at 13 (Apr. 21, 2021), https://bit.ly/46EOT6p.

26

The Second Circuit’s decision thus removes a barrier

to state rate setting for a wide range of online platforms and services that permeate every aspect of life.

For example, under the Second Circuit’s decision, the

Communications Act would not preempt States from

requiring video- and music-streaming services — such

as Netflix or Spotify — to offer cheaper plans to

low-income households. Nor would it preempt them

from mandating rates for cloud-storage services

like Dropbox and iCloud, the paid versions of online

video-conferencing tools like Zoom, online subscription dating services like Bumble, or security or baby

cameras that stream video online like Ring or Nanit,

or from mandating that free, ad-supported online

services offer a paid, ad-free tier at a state-mandated

price cap.

The implications of the Second Circuit’s decision for

broadband are bad enough, but the decision reaches

far beyond broadband. It takes a step toward widespread state rate regulation not only of broadband

internet access services, but also of the many online

services broadband consumers use every day.

CONCLUSION

The petition for a writ of certiorari should be

granted.

27

Respectfully submitted,

JEFFREY A. LAMKEN

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Avenue,

N.W.

Washington, D.C. 20037

(202) 556-2000

SCOTT H. ANGSTREICH

Counsel of Record

ALEX A. PARKINSON

ABIGAIL E. DEHART

DAREN G. ZHANG

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

Counsel for Petitioner

(202) 326-7900

ACA Connects – America’s

Communications Association (sangstreich@kellogghansen.com)

JARED P. MARX

HWG, LLP

1919 M Street, N.W.

8th Floor

Washington, D.C. 20036

(202) 730-1328

Counsel for Petitioner

Satellite Broadcasting and

Communications Association

August 12, 2024

Counsel for Petitioners

New York State Telecommunications Association, Inc., CTIA –

The Wireless Association,

NTCA – The Rural Broadband

Association, and USTelecom –

The Broadband Association