Respondents Brief — New York State Telecommunications Association, Inc., et al., Petitioners v. Letitia James, Attorney General of New York

No. 24-161

IN THE

Supreme Court of the United States

NEW YORK STATE TELECOMMUNICATIONS

ASSOCIATION, INC., et al.,

Petitioners,

v.

LETITIA JAMES, Attorney General of New York,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

JUDITH N. VALE

Deputy Solicitor General

PHILIP J. LEVITZ

Senior Assistant

Solicitor General

28 Liberty Street

New York, New York 10005

(212) 416-8016

barbara.underwood@ag.ny.gov

*Counsel of Record

i

COUNTERSTATEMENT OF

QUESTION PRESENTED

An order by the Federal Communications

Commission (FCC) issued in 2018 classified broadband

internet as an information service subject to Title I of

the Communications Act—a statutory framework under

which Congress gave the FCC only limited regulatory

authority and thus left ample room for States to

regulate. The 2018 Order has now been superseded by

a new FCC order that classifies broadband as a telecommunications service subject to Title II of the Communications Act—a statutory framework under which

Congress gave the FCC broader regulatory authority.

The new FCC order is temporarily stayed as a result of

separate litigation not at issue here. The question

presented is:

Whether New York’s Affordable Broadband Act, a

consumer-protection regulation that helps low-income

state residents obtain broadband access, is impliedly

preempted by the Federal Communications Act when

broadband is classified as a Title I information service,

as it was under the now-superseded 2018 FCC order.

ii

TABLE OF CONTENTS

Page

Table of Authorities ..................................................... iii

Introduction .................................................................... 1

Statement........................................................................ 3

A. Legal Background ............................................... 3

B. Procedural Background .................................... 10

C. Subsequent Events............................................ 13

Reasons for Denying the Petition ................................ 14

A. This Case Is a Poor Vehicle for Addressing

the Question Presented. .................................... 14

B. The Decision Below Does Not Implicate

Any Split Among the Circuit Courts. ............... 17

C. The Decision Below Does Not Implicate

Matters of Nationwide Importance. ................. 18

D. The Decision Below Is Correct.......................... 21

Conclusion..................................................................... 29

iii

TABLE OF AUTHORITIES

Cases

Page(s)

ACA Connects–Am. Commc’ns Ass’n v.

Bonta, 24 F.4th 1233 (9th Cir. 2022) ...17,18,24,27,28

ACA Connects–Am. Commc’ns Ass’n v. Frey, 471

F. Supp. 3d 318 (D. Me. 2020) ............................... 18

Arizona v. United States, 567 U.S. 387 (2012) ........... 21

AT&T Commc’ns of Ill., Inc. v. Illinois Bell Tel.

Co., 349 F.3d 402 (7th Cir. 2003) ........................... 27

Cipollone v. Liggett Grp., Inc., 505 U.S. 504

(1992) ....................................................................... 23

Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir.

2010) .......................................................................... 4

English v. General Elec. Co., 496 U.S. 72 (1990) ....... 24

FCC v. Midwest Video Corp., 440 U.S. 689 (1979)....... 4

Federal Power Comm’n v. Southern Cal. Edison

Co., 376 U.S. 205 (1964) ......................................... 25

Gonzales v. Oregon, 546 U.S. 243 (2006) .................... 20

Griffith v. Connecticut, 218 U.S. 563 (1910)............... 20

Head v. New Mexico Bd. of Examiners in

Optometry, 374 U.S. 424 (1963) ............................. 24

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

150 (2016) ................................................................ 25

In re MCP No. 185, No. 24-7000, 2024 WL

3650468 (6th Cir. Aug. 1, 2024) ....................... 13, 15

Interstate Nat. Gas Co. v. Federal Power

Comm’n, 331 U.S. 682 (1947)................................. 25

Kansas v. Garcia, 589 U.S. 191 (2020) ....................... 21

iv

Cases

Page(s)

Louisiana Public Service Commission v. FCC,

476 U.S. 355 (1986)........................................... 24, 28

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .......... 3, 21

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

2019) ...................................................... 7, 8, 17, 27, 28

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

Internet Servs., 545 U.S. 967 (2005) ........................ 7

Nebbia v. New York, 291 U.S. 502 (1934) ............... 3, 20

Northwest Cent. Pipeline Corp. v. State Corp.

Comm’n, 489 U.S. 493 (1989)................................. 28

O’Gorman & Young, Inc. v. Hartford Fire Ins.

Co., 282 U.S. 251 (1931) ......................................... 20

Postal Tel.-Cable Co. v. Warren-Godwin

Lumber Co., 251 U.S. 27 (1919) ............................. 25

Posters ‘N’ Things, Ltd. v. United States, 511 U.S.

513 (1994) ................................................................ 26

Puerto Rico Dep’t of Consumer Affs. v. Isla

Petroleum Corp., 485 U.S. 495 (1988) ................... 28

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

293 (1988) .......................................................... 25, 26

Transcontinental Gas Pipe Line Corp. v. State

Oil & Gas Board of Mississippi, 474 U.S.

409 (1986) ................................................................ 28

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

Nev. 1968) ..................................................... 4, 18, 24

United States Telecom Ass’n v. FCC, 825 F.3d

674 (D.C. Cir. 2016) .................................................. 6

v

Cases

Page(s)

United States v. Southwest Cable Co., 392 U.S.

157 (1968) .................................................................. 4

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

(1920) ....................................................................... 25

Yee v. City of Escondido, 503 U.S. 519 (1992) ............ 20

Laws

Communications Act of 1934, ch. 652, 48 Stat. 1064 ..... 3

Telecommunications Act of 1996, Pub. L. No.

104-104, 110 Stat. 56 .......................................... 3, 27

15 U.S.C. § 717c............................................................ 25

16 U.S.C. § 824 ............................................................. 25

47 U.S.C.

§ 152..................................................................... 4, 23

§ 152(a) .................................................................... 23

§ 152(b) .................................................................... 23

§ 153(24) .............................................................. 4, 26

§ 153(51) .................................................................. 26

§ 153(53) .................................................................... 5

§ 154(i) ....................................................................... 4

§ 160(a) ...................................................................... 5

§ 160(e) ...................................................................... 5

§ 201(b) ...................................................................... 5

§ 230(b) .................................................................... 27

§ 332(c)....................................................................... 6

§ 414......................................................................... 23

§ 532(c)....................................................................... 6

§ 543(a) ...................................................................... 6

§ 1302(a) .............................................................. 7, 23

§ 1305(k) .................................................................... 7

vi

Laws

Page(s)

N.Y. General Business Law

§ 399-zzzzz(2) ........................................................ 8, 9

§ 399-zzzzz(3) ........................................................ 6, 9

§ 399-zzzzz(4) ............................................................ 9

§ 399-zzzzz(5) ...................................................... 9, 19

Federal Communications Commission Sources

In re Restoring Internet Freedom, 33 FCC Rcd.

311 (2018) .................................................................. 7

In re Safeguarding and Securing the Open

Internet, FCC Docket No. 24-52

(released May 7, 2024)............................ 5, 13, 15, 21

Federal Commc’ns Comm’n, Connecting America:

The National Broadband Plan (2010),

https://docs.fcc.gov/public/attachments/DOC296935A1.pdf ............................................................ 6

Miscellaneous Authority

Philip R. Hochberg, The States Regulate Cable:

A Legislative Analysis of Substantive

Provisions (1978),

http://www.pirp.harvard.edu/pubs_pdf/hoch

ber/hochber-p78-4.pdf ............................................... 5

INTRODUCTION

New York enacted the Affordable Broadband Act

(ABA) to help low-income state residents access broadband internet service. The ABA requires broadband

providers to offer a basic broadband product to qualifying low-income state residents at specified maximum

prices, while allowing smaller providers to seek an

exemption from the statute’s requirements.

At the time of the ABA’s enactment, the Federal

Communications Commission (FCC) had classified

broadband as an information service subject to Title I of

the Communications Act. Under Title I, Congress gave

the FCC only limited regulatory authority—leaving

substantial room for States to regulate information

services.

Petitioners are associations of broadband providers.

They filed this litigation claiming that the ABA was

impliedly preempted by federal law when broadband

was classified as a Title I information service. The U.S.

District Court for the Eastern District of New York

concluded that the ABA was impliedly preempted. The

U.S. Court of Appeals for the Second Circuit reversed,

concluding that federal law did not preempt the ABA.

Certiorari should be denied for any one of four

independent reasons. First, this case is a poor vehicle

for addressing the question presented because the

governing federal statutory framework is in flux.

Shortly after the decision below, the FCC issued a new

order classifying broadband as a telecommunications

service subject to Title II of the Act—a statutory

framework that is very different from Title I and that

drastically alters any preemption analysis regarding

the ABA. Although enforcement of the new FCC order

is temporarily stayed pending resolution of unrelated

2

litigation in the Sixth Circuit, petitioners have recognized that there will be no reason for them to pursue the

current litigation further if the new rule takes effect and

that they will instead file an entirely new litigation.

Second, the decision below does not conflict with

any decision of another court of appeals (or any other

court). To the contrary, two other courts of appeals

agree with the Second Circuit that federal law does not

broadly preempt state regulations of Title I information

services.

Third, the decision below does not implicate

important matters of nationwide concern. As an initial

matter, the ABA is not, as petitioners incorrectly suggest, “public-utility-style” regulation of rates charged to

all broadband users, but rather a consumer-protection

regulation to ensure that affordable broadband access

is available to the neediest state residents. Moreover,

the ABA will not have the economic effects that petitioners speculate about even for broadband providers in

New York, let alone in other States. The three largest

broadband providers in New York are already offering

an affordable broadband product to low-income consumers irrespective of the ABA, and many smaller broadband providers can seek an exemption from the ABA’s

requirements.

Fourth, the decision below is correct. Congress has

expressed no intent—much less the requisite clear and

manifest intent—to preempt state regulation of Title I

information services. Petitioners’ field preemption claim

fails because, far from imposing a pervasive federal

regulatory regime on Title I information services,

Congress instead gave the FCC only limited authority

over information services. Congress thus left the States’

traditional police powers over information services

3

largely untouched. Petitioners expressly abandoned in

the court of appeals the conflict preemption argument

they raise here, which is meritless in any event.

STATEMENT

A. Legal Background

1. Congress has declined to enact any uniform or

comprehensive federal statutory regime to govern all

interstate communications services—an umbrella term

that includes many distinct types of services, including

wireline telephone, mobile telephone, radio, cable television, and broadband internet services. Instead, through

the Communications Act of 1934 and its subsequent

amendments (including the Telecommunications Act of

1996), Congress regulated different types of interstate

communications services differently. (Pet. App. 3a.) See

generally Communications Act of 1934, ch. 652, 48 Stat.

1064; Telecommunications Act of 1996, Pub. L. No. 104104, 110 Stat. 56.

In using this targeted approach, Congress well

understood that, absent clear and manifest federal law

to the contrary, see Medtronic, Inc. v. Lohr, 518 U.S.

470, 485 (1996), States have broad sovereign powers to

protect consumers in their respective jurisdictions—

including by regulating the prices charged for goods or

services, see, e.g., Nebbia v. New York, 291 U.S. 502, 537

(1934). Congress thus made clear when, and to what

extent, it intended to preempt States from regulating a

particular type of interstate communications service.

And for each type of interstate communications service,

Congress made specific choices about the scope and

limits of the FCC’s authority to regulate that service—

including by regulating rates.

4

For example, as most relevant here, Congress gave

the FCC only limited, ancillary authority over interstate

communications services that are classified as an

“information service” subject to Title I of the Act. See 47

U.S.C. § 153(24) (defining “information service”); id.

§ 154(i) (FCC may issue regulations consistent with

Title I “as may be necessary in the execution of its functions”). See generally FCC v. Midwest Video Corp., 440

U.S. 689, 696-907 (1979) (summarizing ancillary

authority precedents). The FCC’s ancillary authority is

constrained by two requirements. First, a regulation of

a Title I service must be within the agency’s general

jurisdiction, i.e., it must concern interstate rather than

intrastate information services. See 47 U.S.C. § 152; see

also United States v. Southwest Cable Co., 392 U.S. 157,

167 (1968). Second, a regulation of a Title I service must

be “reasonably ancillary to the effective performance of

the Commission’s various responsibilities,” Southwest

Cable, 392 U.S. at 178, i.e., it must be reasonably in

furtherance of the FCC’s specific responsibilities under

other titles of the Act, see Midwest Video, 440 U.S. at

706-07; Comcast Corp. v. FCC, 600 F.3d 642, 652-53

(D.C. Cir. 2010).

Unlike other titles of the Act (see infra at 5), Title I

does not contain any provision authorizing the FCC to

regulate rates. Nor does Title I contain any provision

preempting States from regulating the rates charged for

interstate information services. Accordingly, when cable

television was classified as an information service subject to Title I, States routinely regulated that interstate

communications service—including by regulating rates.

See, e.g., TV Pix, Inc. v. Taylor, 304 F. Supp. 459, 463

5

(D. Nev. 1968) (three-judge court), aff’d 396 U.S. 556

(1970) (per curiam).1

In contrast to the FCC’s limited authority over

information services, Congress gave the FCC substantial authority to regulate interstate communications

services that are classified as a “telecommunications

service” subject to Title II of the Act. See 47 U.S.C.

§ 153(53) (defining “telecommunications service”). Telecommunications services are potentially subject to an

array of statutory duties and constraints applicable to

common carriers. For instance, Title II generally bars a

common carrier from levying unreasonable charges. See

47 U.S.C. § 201(b). Congress expressly authorized the

FCC to forbear from applying many of these Title II

requirements to a telecommunications service if certain

prerequisites are satisfied. Id. § 160(a)(1). If the FCC

exercises its forbearance authority to decline to impose

a specific Title II requirement, then a State generally

may not continue to apply that federal statutory requirement. Id. § 160(e). And where the FCC exercises its

broad Title II authority, its regulations may also

preempt state laws, though such preemption is by no

means automatic and must be determined based on

both the specific federal regulation and state law at

issue. See, e.g., Declaratory Ruling & Order at 170-175,

In re Safeguarding and Securing the Open Internet,

FCC Docket No. 24-52 (released May 7, 2024) (“2024

Order”) (declining to preempt state regulation when

reclassifying broadband as Title II telecommunications

service).

1 See also Philip R. Hochberg, The States Regulate Cable: A

Legislative Analysis of Substantive Provisions 29-30, 91-96 (1978).

For authorities available on the internet, URLs appear in the Table

of Authorities.)

6

Still other titles of the Act establish different

regimes for other types of interstate communications

services—different from both information services,

governed by Title I, and telecommunications services,

governed by Title II. For instance, cable television is

now governed by Title VI, which authorizes the FCC to

determine certain rates. 47 U.S.C. §§ 532(c), 543(a). And

mobile service is governed by Title III, which expressly

preempts States from regulating rates, with certain

exceptions, see id. § 332(c)(3)(A)(i)-(ii), but does not preempt States “from regulating the other terms and conditions of commercial mobile services,” id. § 332(c)(3)(A).

2. This case concerns a New York consumer-protection statute, commonly referred to as the Affordable

Broadband Act (ABA), that the Legislature enacted in

2021, to help provide low-income consumers with access

to broadband services. See N.Y. General Business Law

§ 399-zzzzz(3) (see Pet. App. 107a-111a).

Today, most users connect to the internet through a

broadband provider that delivers high-speed internet

access. United States Telecom Ass’n v. FCC, 825 F.3d

674, 690 (D.C. Cir. 2016). Broadband plays an important role in “how we educate children, deliver health

care, manage energy, ensure public safety, engage

government, and access, organize and disseminate

knowledge.”2 After the COVID-19 pandemic, many

people continue to need high-speed internet to work and

study remotely. Congress has declared it a national

priority “to ensure that all people of the United States

have access to broadband capability” and to develop a

2 FCC, Connecting America: The National Broadband Plan xi

(2010).

7

“strategy for achieving affordability of such service.” 47

U.S.C. § 1305(k)(2)(B).

Although Congress has not expressly delineated

which existing federal statutory framework applies to

broadband, it has expressly recognized that States

retain regulatory authority over broadband, including

to set price caps on rates. Congress provided that both

the FCC and each State’s commission with regulatory

jurisdiction over broadband “shall encourage the deployment on a reasonable and timely basis” of broadband

capability to “all Americans” by utilizing, “in a manner

consistent with the public interest, convenience, and

necessity, price cap regulation, regulatory forbearance,”

and other measures that remove barriers to infrastructure investment. Id. § 1302(a) (emphasis added).

The FCC has repeatedly changed the classification

of broadband internet service, sometimes classifying it

as an information service subject to Title I and sometimes classifying it as a telecommunications service

subject to Title II. See Mozilla Corp. v. FCC, 940 F.3d 1,

17-18 (D.C. Cir. 2019) (summarizing history). Although

the applicable classification determines which federal

statutory framework governs broadband, this case does

not concern the validity of any FCC classification decision or the scope of the FCC’s statutory authority to

make such decisions. Cf. National Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).

At the time that New York enacted the ABA, the

FCC had classified broadband as a Title I information

service. See In re Restoring Internet Freedom, 33 FCC

Rcd. 311, 312 (2018) (“2018 Order”). In the 2018 Order,

the FCC also purported to preempt all state or local

economic and other regulation of broadband providers.

Id. at 426-28. After the 2018 Order was challenged in

8

litigation, the D.C. Circuit upheld the FCC’s classification of broadband as a Title I information service.

Mozilla, 940 F.3d at 23-24. But the court rejected the

FCC’s attempt to preempt state regulation of broadband

providers. The court found no express statutory authority in Title I (or elsewhere) for such preemption. Id. at

74. And the D.C. Circuit concluded that the FCC’s decision to classify broadband as an information service had

the consequence of placing broadband under the Title I

regime, in which both the FCC’s regulatory and preemptive authority is severely constrained. Id. at 75.

New York subsequently enacted the ABA to “expand

the reach of broadband service in the State,” by facilitating low-income consumers’ access. (CA2 J.A. 100

(Assembly sponsor’s memorandum), ECF No. 33.) Legislative memoranda explained that internet access had

“become an essential service” without which “no one can

successfully participate in 21st Century life.” (J.A. 100.)

Yet the average cost of a basic high-speed internet plan

in the State—more than $50 per month—was “unaffordable to too many people.” (J.A. 100.)

The ABA requires broadband service providers in

New York to offer a basic high-speed broadband service

at or below statutorily established price caps to lowincome consumers who qualify for specified governmental benefits.3 General Business Law § 399-zzzzz(2). A

provider may comply with the statute by charging no

more than $15 per month for broadband service of 25

3 Among the qualifying consumers are those whose households

are eligible for reduced-price school lunch or supplemental nutrition assistance benefits; who are Medicaid-eligible; who receive

rent-increase exemptions based on disability or senior-citizen

status; and who receive discounted electric or gas service. See

General Business Law § 399-zzzzz(2).

9

megabits per second, or no more than $20 per month for

broadband service of 200 megabits per second. Id. § 399zzzzz(2)-(4). Certain price increases are allowable every

few years. Id.

New York’s Public Service Commission (PSC) may

exempt certain small broadband providers, i.e., those

“providing service to no more than twenty thousand

households,” from the ABA’s requirements, if the PSC

determines that compliance would result in “unreasonable or unsustainable financial impact” on the provider.

Id. § 399-zzzzz(5). The PSC also may grant exceptions

to the speed thresholds where “such download speed is

not reasonably practicable.” Id. § 399-zzzzz(2). In May

2021, the PSC provisionally exempted dozens of providers from ABA compliance while the PSC evaluated the

providers’ full exemption requests.4 (J.A. 105-113.) The

recipients of these provisional exemptions include all

the providers that serve no more than twenty thousand

households and that submitted declarations in this

litigation alleging that the ABA’s implementation would

cause them irreparable harm, namely, Empire Telephone Corporation, Heart of the Catskills Communications, Delhi Telephone Company, and Champlain

Telephone Company.5 (See J.A. 12-16, 27-38, 43-54,

112.)

4 The PSC has not completed its evaluation of providers’ final

exemption requests because enforcement of the ABA has been

stayed by either the district court’s orders here or the State’s agreement not to enforce the ABA pending a decision on whether to grant

this petition for a writ of certiorari (see infra at 16).

These providers all submitted declarations in support of

petitioners’ motion for a preliminary injunction, and three of them

submitted similar declarations in support of petitioners’ application

for an emergency stay pending resolution of their petition in this

5

(continues on the next page)

10

The PSC and other state agencies have also taken

other actions to support broadband affordability. For

instance, before the ABA’s enactment, two of the three

largest broadband providers in New York—Charter

Communications Inc. and Altice USA Inc.—each agreed

as part of separate merger transactions approved by the

PSC, to provide broadband to low-income consumers at

prices consistent with the prices later codified in the

ABA. (Galasso Decl. ¶¶ 5, 18, 20.6) And Charter and

Altice recently agreed to offer such pricing for at least

the next four years. (Galasso Decl. ¶¶ 18, 20.) The PSC

also has encouraged other voluntary efforts to expand

broadband access for low-income consumers, like

Verizon’s voluntary program offering broadband to

many low-income consumers at prices consistent with

the ABA (J.A. 19; Galasso Decl. ¶ 16).

B. Procedural Background

Several associations of companies that provide

broadband access in New York challenged the ABA by

filing this lawsuit in the U.S. District Court for the Eastern District of New York against the New York State

Attorney General in her official capacity. (J.A. 80-98.)

The lawsuit sought a declaration that federal law

preempted the ABA and sought both preliminary and

permanent injunctive relief. (J.A. 95-97.)

The district court (Hurley, J.) preliminarily enjoined

enforcement of the ABA. (Pet. App. 62a-94a.) Agreeing

Court. See Appl. for an Emergency Stay of the J., No. 24A138 (“Stay

Appl.”), Exs. 10, 11, 12.

6 The declaration of Valery Galasso, Chief of Public Policy in

the PSC’s Office of Telecommunications, is attached as an exhibit

to respondent’s opposition to petitioners’ stay application, No.

24A138.

11

with the providers’ sweeping field preemption argument, the court concluded that the Act preempted States

from regulating broadband providers because they

offered a type of interstate communications service.

(Pet. App. 83a-91a.) In the alternative, the court also

agreed with the providers’ conflict preemption argument, which posited that the FCC’s 2018 Order

preempted the ABA. (Pet. App. 74a-83a.) The court

declined to rule on the providers’ separate conflict

preemption argument, which relied on the Act’s definition of “telecommunications carrier.” See Mem. in Supp.

of Pls.’ Mot. for Prelim. Inj. 11-14, No. 2:21-cv-2389

(E.D.N.Y. May 6, 2021), ECF No. 16 (relying on 47

U.S.C. § 153(51)).

At the request of both parties, the court then soordered and entered a stipulated final judgment that

expressly incorporated the reasoning in its preliminary

injunction order and, on those grounds, declared the

ABA federally preempted and permanently enjoined its

enforcement. The judgment explicitly preserved the

State’s right to appeal. (Pet. App. 95a-97a.)

The State timely appealed, and the Second Circuit

reversed. (Pet. App. 1a-38a.) Judge Sullivan dissented.

(Pet. App. 39a-61a.) As an initial matter, the court

concluded that the parties’ stipulation to a final judgment ordered by the district court, which ended the

litigation and preserved the State’s appellate rights,

constituted a final judgment subject to appellate review.

(Pet. App. 8a-16a.) Petitioners do not challenge that

determination in their petition. Pet. 9 n.6.

Turning to the merits, the Second Circuit

emphasized that States’ police power may not be superseded by federal law unless preemption is Congress’s

“clear and manifest purpose.” (Pet. App. 19a (quotation

12

marks omitted); see Pet. App. 19a-21a.) The court found

no field preemption because neither the text nor structure of the Act evinced any such clear and manifest

congressional purpose to prevent States from regulating either interstate communications services (as the

district court had ruled) or the prices charged for Title I

information services (as petitioners had argued in the

Second Circuit). (Pet. App. 21a-31a.) To the contrary, the

court explained, the Act’s text, structure, and history

each demonstrated that Congress intended for States

“to retain their regulatory authority over many interstate communications services—and to play a role in

regulating the rates charged for such services—unless

it said otherwise.” 7 (Pet. App. 29a; see Pet. App. 19a31a.)

The court also determined that the FCC’s 2018

Order did not trigger conflict preemption. The court

explained that by classifying broadband as a Title I

information service, the FCC had chosen the statutory

framework under which it lacked authority to regulate

rates or preempt regulations like the ABA. (Pet. App.

31a-38a.)

The Second Circuit did not consider the separate

conflict preemption argument, based on the statutory

definition of “telecommunications provider,” because

petitioners explicitly abandoned that argument at the

circuit. See Br. for Pls.-Appellees 15 n.26, No. 21-1975

(CA2 Feb. 23, 2022), ECF No. 118.

7 Petitioners misconstrue the Second Circuit’s decision in

contending (Pet. 9, 14) that it ruled that Title II but not Title I has

field preemptive effects. The court did not make any such ruling,

instead pointing to Title II, among many other statutory provisions,

as reasons why there was no field preemption. (Pet. App. 27a-29a.)

13

C. Subsequent Events

Shortly after the Second Circuit’s ruling, the FCC

issued a new order that, inter alia, classifies broadband

as a Title II telecommunications service rather than a

Title I information service, and establishes conductbased rules to support an open internet (commonly

known as “net neutrality”). See 2024 Order. Several

broadband providers and associations of those providers—including petitioners here—petitioned for judicial

review of the 2024 Order in various circuit courts of

appeals. Those petitions were consolidated in the U.S.

Court of Appeals for the Sixth Circuit, where they

remain pending.

In August 2024, a motions panel of the Sixth Circuit

temporarily stayed implementation of the 2024 Order

while the petitions are pending; ordered that a new

panel hear the petitions on the merits; and set the petitions for oral argument on October 31, 2024. See In re

MCP No. 185, No. 24-7000, 2024 WL 3650468 (6th Cir.

Aug. 1, 2024) (per curiam); see also Notice of Oral Argument (Aug. 26, 2024), In re MCP No. 185, No. 24-7000,

ECF No. 124.

14

REASONS FOR DENYING THE PETITION

A. This Case Is a Poor Vehicle for Addressing

the Question Presented.

1. The Court should deny certiorari because the

federal framework (Title I or Title II) applicable to

broadband is in flux, rendering this case an exceedingly

poor vehicle to review the question presented here, i.e.,

whether Congress preempted state regulation of broadband when it is classified as a Title I information service.

Shortly after the Second Circuit issued its decision,

the FCC finalized the 2024 Order classifying broadband

as a Title II telecommunications service rather than a

Title I information service. That shift drastically alters

the preemption analysis relevant to the ABA. The

Second Circuit’s decision here is based on an analysis of

the federal law applicable to Title I information services,

because broadband was at the time of the decision below

classified as such a service. But now that the FCC has

reclassified broadband as a Title II telecommunications

service, the relevant federal law is quite different;

Congress made very different choices about the scope of

the FCC’s regulatory authority and the potential for

preemption of state laws governing Title II telecommunications services. Indeed, petitioners have made clear

that they intend to file an entirely new litigation raising

new claims that the ABA is preempted under the 2024

Order as soon as that Order takes effect.8 (See Stay

Petitioners have indicated that they contend the ABA is

preempted under the 2024 Order (see Stay Appl. Ex. 5 (Dist. Ct.

Stip.) at 3), even though the FCC expressly declined in the 2024

Order to preempt state broadband affordability programs like the

ABA and found “that states have a critical role to play in promoting

broadband affordability and ensuring connectivity for low-income

8

(continues on the next page)

15

Appl. Ex. 5 (Dist. Ct. Stip.) at 3, No. 24A138 (U.S. Aug.

2, 2024).)

Although petitioners suggest that the Sixth

Circuit’s temporary stay of the 2024 Order means that

the Sixth Circuit will likely overturn the Order, the

temporary stay is not a decision on the merits and

depended heavily on equitable considerations. See In re

MCP No. 185, 2024 WL 3650468, at *4. Though the stay

panel concluded that the challengers are likely to

succeed on the merits, that panel will not decide the

merits appeal and its view on the merits may thus have

little effect on the ultimate ruling of the merits panel.

See id. at *5.

There is no basis for petitioners’ request (Pet. 23)

for this Court to hold their petition (or grant it and delay

briefing and argument) pending this Court’s adjudication of a hypothetical petition seeking certiorari review

of the Sixth Circuit’s future merits decision—whichever

way that decision comes out. The underlying legal issues

in the Sixth Circuit case are entirely distinct from the

legal issues in the current case. The Sixth Circuit case

concerns whether Congress gave the FCC statutory

authority to classify broadband as a Title II telecommunications service subject to the federal agency’s broad

Title II regulatory powers. In re MCP No. 185, 2024 WL

3650468, at *2-3. But the Second Circuit’s decision here

does not address that question. Moreover, the Sixth

Circuit case does not concern preemption of state laws

at all—let alone preemption of laws regulating broadband when it was classified as a Title I information

service. See id.; see also Opening Br. of Pet’rs, In re MCP

consumers” (2024 Order at 175). But that is not a question that was

presented or decided below, nor is it presented by this petition for

certiorari.

16

No. 185, No. 24-7000 (6th Cir. Aug. 12, 2024), ECF No.

85. The Court should not delay resolving the current

petition to wait for a hypothetical future petition that

would not raise legal questions similar to the question

presented here.

Such delay would not only be based on speculation

about future events, but also would potentially be very

lengthy and highly prejudicial to respondent. Although

the Sixth Circuit has scheduled oral argument on

October 31, a merits decision is unlikely to issue for

several months, at minimum, because of the complexity

of the numerous consolidated petitions that the Sixth

Circuit must resolve. And after that decision issues,

there would be further delay to await any petition for

certiorari and this Court’s resolution of such petition.

Such an indefinite hold would be particularly

inappropriate here. Respondent agreed not to enforce

the ABA against petitioners’ members pending the

Court’s decision on their petition to allow the parties

and the Court a reasonable amount of time to brief and

resolve the petition. See Jt. Ltr. from Counsel for Pet’rs

and Resp. & Attachment, New York State Telecomms.

Ass’n v. James, No. 24A138 (U.S. filed Aug. 8, 2024).

But petitioners are now seeking an unreasonable delay

of months or even years in the resolution of their

petition.9

9 Yet another reason this case is a poor vehicle for review of

the question presented is the issue of appellate jurisdiction raised

by the dissent in the Second Circuit (Pet. App. 39a-56a). While the

Second Circuit majority correctly concluded that there was finality,

and therefore appellate jurisdiction (Pet. App. 8a-16a), and neither

party has asked this Court to revisit the issue, the Court might well

need to consider the jurisdictional issue before reaching the question presented.

17

B. The Decision Below Does Not Implicate

Any Split Among the Circuit Courts.

Certiorari also should be denied because the

decision below does not conflict with any decision of

another court of appeals—or any other court. Petitioners do not contend otherwise.

The two other courts of appeals—the D.C. Circuit

and the Ninth Circuit—that have considered whether

the Communications Act preempts state regulation of

broadband when it is classified as a Title I information

service are in accord with the Second Circuit that “the

answer is ‘no.’” (Pet. App. 33a.)

As the D.C. Circuit has determined—consistent

with the court of appeals below—Congress chose to give

the FCC only limited ancillary authority over Title I

information services, leaving ample room for the States

to regulate such services. See Mozilla, 940 F.3d at 74-80.

The Ninth Circuit agrees. In ACA Connects–

America’s Communications Association v. Bonta, the

Ninth Circuit rejected the same preemption arguments

that petitioners make here, explaining that neither Title

I nor any other provision of the Communications Act

remotely suggests that Congress occupied the field of

interstate communications services.10 24 F.4th 1233,

1247-48 (9th Cir. 2022). The Ninth Circuit also rejected

the same conflict preemption argument that petitioners

10 Contrary to petitioners’ suggestion (Pet. 14 n.10), the Ninth

Circuit did not rest its holding on an assumption that the California

statute at issue in ACA Connects regulated only intrastate communications services. The Ninth Circuit recognized that the California

law—like the ABA—“touches on interstate communications” by

regulating the interstate communications channel of broadband,

while applying only to broadband provided to consumers in the

State. See ACA Connects, 24 F.4th at 1247.

18

raise here, see id. at 1245-46, and abandoned at the

Second Circuit (see infra at 5-6).

Federal district courts are in accord, rejecting

preemption challenges to state laws regulating broadband or other Title I information services. See, e.g., ACA

Connects–Am. Commc’ns Ass’n v. Frey, 471 F. Supp. 3d

318, 323-26 (D. Me. 2020) (Maine statute regulating

broadband); TV Pix, 304 F. Supp. at 463-64.

C. The Decision Below Does Not Implicate

Matters of Nationwide Importance.

Certiorari should be denied for the additional and

independent reason that the decision below does not

implicate matters of national significance, as petitioners erroneously contend (see Pet. 22-25).

As an initial matter, petitioners’ arguments are

based on the incorrect premise that the ABA imposes

“public-utility-style” regulation on broadband (Pet. 22).

The ABA does not regulate the rates charged to all

broadband users. Rather, the ABA is a consumer-protection regulation that ensures that affordable broadband

access is available to the neediest state residents.

In any event, for two reasons, the ABA will not have

the drastic regulatory or economic effects that petitioners describe for broadband providers in New York—let

alone for providers in other States. First, New York’s

three largest broadband providers—Charter, Altice,

and Verizon (which together provide broadband service

to over 95% percent of the State)—are already voluntarily providing affordable broadband products to lowincome consumers irrespective of the ABA. (Galasso

Decl. ¶¶ 5, 15-20.) Two of those three, Charter (owner of

broadband provider Spectrum) and Altice (owner of

broadband provider Optimum), have already voluntar-

19

ily agreed to provide a broadband product that is fully

compliant with the ABA’s requirements—regardless of

whether the law is in effect. Specifically, under recent

agreements related to earlier merger conditions,

Charter and Altice each agreed to provide broadband

service at speeds exceeding 25 megabits per second to

low-income state residents for $15 a month, just as the

ABA requires, for at least the next four years (subject to

inflation adjustments similar to those available under

the ABA). (Galasso Decl. ¶¶ 18, 20.) And Verizon

already voluntarily provides a broadband product that

is broadly consistent with the ABA’s requirements—as

Verizon’s own declaration in this case explains. (See J.A.

18-19 (Verizon offers broadband service at speeds of at

least 200 megabits per second to many low-income state

residents for $19.99 a month).)

Second, although petitioners have identified some

smaller broadband providers that do not voluntarily

offer ABA-compliant products and attest that doing so

would not be feasible for them, the ABA has an exemption designed for precisely such providers. The ABA

states that it shall not apply to providers serving no

more than twenty thousand households if compliance

with the ABA “would result in unreasonable or unsustainable financial impact” on the provider. General

Business Law § 399-zzzzz(5). Tellingly, each of the smaller providers that submitted declarations supporting

petitioners in this case acknowledge that they might

qualify for the exemption. (Stay Appl. Ex. 10 (Champlain) ¶ 14; Id. Ex. 11 (Heart of the Catskills) ¶ 22; Id.

Ex. 12 (Delhi) ¶ 12; see also J.A. 12-16 (Empire).) In fact,

each of them already received a provisional exemption.

(J.A. 105-113.)

There is also no merit to petitioners’ speculation

(Pet. 22-23, 25-26) that the ABA will have substantial

20

effects outside of New York. The ABA was enacted more

than three years ago. But as far as respondent is aware,

no other State has enacted a law that, like the ABA,

requires broadband providers to offer low-income individuals an affordable broadband product. There is thus

no reason to expect the sort of “patchwork” of differing

state regulations that petitioners imagine.

In any event, there is nothing novel about States

making different legislative choices about how they

protect consumers and regulate businesses—including

through pricing-related laws. Indeed, “the structure

and limitations of federalism . . . allow the States great

latitude under their police powers to legislate as to the

protection of the lives, limbs, health, comfort, and quiet

of all persons,” Gonzales v. Oregon, 546 U.S. 243, 270

(2006) (quotation marks omitted), and the operation of

business “in any of its aspects, including the prices to be

charged,” Nebbia, 291 U.S. at 537. Accordingly, States

routinely enact a variety of laws that set different caps

on prices. See, e.g., Yee v. City of Escondido, 503 U.S.

519, 529-30 (1992) (rent); Nebbia, 291 U.S. at 539

(milk); O’Gorman & Young, Inc. v. Hartford Fire Ins.

Co., 282 U.S. 251, 257 (1931) (insurance commissions);

Griffith v. Connecticut, 218 U.S. 563, 567-69 (1910)

(interest rates on loans). The ABA fits squarely within

this longstanding tradition.

Petitioners also err in arguing (Pet. 23-25) that

allowing the ABA to take effect would chill investment

in broadband. Petitioners speculate that investment in

broadband has grown in recent years because of the

FCC’s 2018 Order classifying broadband as an information service. But the FCC has found such speculation

21

unsubstantiated. See 2024 Order at 175-88. 11 Indeed,

there is substantial evidence that investment also

increased significantly for various telecommunications

services subject to Title II’s more rigorous federal statutory regime—including broadband when it was classified as a Title II telecommunications service. See, e.g.,

id. at 175-76. Given that stricter federal regulation

across the board did not chill investment, there is no

reason to conclude that a single state regulation governing broadband service to a small proportion of New

York’s population (i.e., low-income consumers) would do

so.

D. The Decision Below Is Correct.

Finally, this case does not merit this Court’s review

because the Second Circuit’s decision is correct.

“[B]ecause the States are independent sovereigns in our

federal system,” there is a strong presumption “that the

historic police powers of the States were not to be superseded by [federal statute] unless that was the clear and

manifest purpose of Congress.” Medtronic, Inc., 518 U.S.

at 485 (quotation marks omitted). Petitioners failed to

establish any such clear and manifest congressional

purpose to preempt a state law like the ABA.

Field Preemption: To establish field preemption,

which is quite rare, see Kansas v. Garcia, 589 U.S. 191,

208 (2020), there must be a federal statutory regime “so

pervasive that Congress left no room for the States to

supplement it,” Arizona v. United States, 567 U.S. 387,

399 (2012) (alteration and quotation marks omitted).

11 The FCC also has rejected petitioners’ speculation (Pet. 2425) that greater investment in broadband in the United States as

compared to Europe is attributable to laxer regulation here. Cf.

2024 Order at 186-88.

22

The Second Circuit properly rejected petitioners’

remarkably sweeping argument that Congress intended

to preempt States from regulating the entire field of

interstate communications services (Pet. App. 17a31a)—an argument that petitioners backed away from

at the Second Circuit and are now resurrecting in their

certiorari petition (see Pet. App. 18a-19a).

That argument is plainly incorrect because the

Communications Act does not impose any pervasive

federal statutory regime on all interstate communications services. To the contrary, the Act’s various statutory titles impose very different types of federal statutory regimes on different types of interstate communications services (e.g., radio, cable television, mobile,

information services, telecommunications services). And

these distinct statutory regimes reflect Congress’s

different choices about the extent of the FCC’s regulatory authority and the scope of potential preemption of

state laws—depending on the type of interstate communications service involved. See supra at 3-6. As the

Second Circuit correctly observed, “no court ha[s] ever

found field preemption of the whole of interstate communications,” and “courts have upheld numerous state

regulations of interstate communications services

against preemption challenges.” (Pet. App. 17a-18a

(quotation marks omitted); see Pet. App. 18a (listing

examples).)

The Act’s targeted structure and many of its specific

provisions also dispose of petitioners’ argument that

Congress entirely ousted States from the field of regulating the rates charged for Title I information services.

Title I gives the FCC only limited ancillary authority

over information services, and does not expressly

provide the FCC with authority over rates. See supra at

4-5. Such narrow federal authority is the opposite of the

23

type of pervasive federal regime that is required for field

preemption. Moreover, unlike Title I, Title II of the Act

gives the FCC broad authority over the rates charged

for telecommunications services, including the authority to displace certain state regulations of telecommunications services. See supra at 5. And when it wanted

to do so, Congress expressly preempted certain—but

not all—state regulation of the rates for other interstate

communications services, such mobile phone services.

See supra at 6. These express preemption provisions

demonstrate “that matters beyond [those provisions’]

reach are not pre-empted.” Cipollone v. Liggett Grp.,

Inc., 505 U.S. 504, 517 (1992).

Congress also included various other provisions in

the Act that further confirm its intent to preserve a role

for the States in regulating interstate communications

services, including rates. For example, a statutory savings clause provides that the Act’s remedies do not “in

any way abridge or alter” existing state legislative or

common-law remedies, 47 U.S.C. § 414—a broad preservation of state authority fundamentally incompatible

with field preemption. And another provision of the Act

explicitly encourages States to promote broadband

internet access, including through means such as “price

cap regulation.” Id. § 1302(a).

Section 152 of the Act does not establish field

preemption, as petitioners contend (Pet. 15-16). That

section sets forth the general scope and limits on the

FCC’s jurisdiction by stating that the Act “shall apply

to all interstate and foreign communication by wire and

radio” in the United States, 47 U.S.C. § 152(a), and that

the FCC does not have jurisdiction over “intrastate

communication service,” id. § 152(b). But § 152 does not

suggest—much less clearly and manifestly demonstrate—that the FCC has exclusive jurisdiction over

24

interstate communications services. See ACA Connects,

24 F.4th at 1246-48; TV Pix, 304 F. Supp. at 464. Indeed,

the mere existence of a federal regulatory scheme “does

not by itself imply pre-emption of state remedies.”

English v. General Elec. Co., 496 U.S. 72, 87 (1990).

Petitioners misplace their reliance (Pet. 15, 17) on

Louisiana Public Service Commission v. FCC, 476 U.S.

355 (1986), which “strongly undermines, rather than

supports,” petitioners’ argument. (See Pet. App. 23a.)

Louisiana emphasized that § 152 limits the FCC’s

jurisdiction by prohibiting it from regulating intrastate

communications services, 476 U.S. at 359—not the

States’ jurisdiction. And where Louisiana described the

FCC’s authority as “plenary,” id. at 360, it was discussing the FCC’s authority over wireline telephone service,

see id. at 360, 366-68—which is a Title II telecommunications service. The FCC does not have such plenary

authority over Title I information services. In any event,

field preemption “cannot be judged by reference to

broad statements about the ‘comprehensive’ nature of

federal regulation under the Federal Communications

Act,” but rather must rest on “positive evidence of legislative intent” in “specific provisions of the federal

statute.” Head v. New Mexico Bd. of Examiners in

Optometry, 374 U.S. 424, 429-30, 432 (1963). Neither

§ 152 nor any other provision of the Act establishes

congressional intent to oust States from regulating Title

I information services.

Petitioners also misplace their reliance (Pet. 15-16)

on language in the Federal Power Act and the Natural

Gas Act that they contend is similar to § 152 of the

Communications Act. The interpretation of those

statutes is properly informed by statutory provisions

and history wholly different from those presented here.

For instance, the Federal Power Act and the Natural

25

Gas Act contain detailed provisions authorizing the

relevant federal agency to comprehensively regulate the

rates of interstate electricity and gas sales, respectively.

E.g., 16 U.S.C. § 824; 15 U.S.C. § 717c; see Hughes v.

Talen Energy Mktg., LLC, 578 U.S. 150, 154 (2016)

(relying on Federal Power Act expressly authorizing

federal agency to regulate rates in finding preemption

of state statute). By contrast, Title I of the Communications Act gives the FCC no comparable authority.12

Moreover, Congress enacted the Federal Power Act and

the Natural Gas Act after this Court had held in

Commerce Clause decisions that States could not

regulate the wholesale rates of gas or electrical energy

moving in interstate commerce. See Interstate Nat. Gas

Co. v. Federal Power Comm’n, 331 U.S. 682, 689-90

(1947). (See also Pet. App. 24a-25a (describing history).)

These federal statutes thus ensured that wholesale

rates of interstate gas and electricity did not go entirely

unregulated. Federal Power Comm’n v. Southern Cal.

Edison Co., 376 U.S. 205, 213 (1964). No similar history

exists for the Communications Act.

Schneidewind v. ANR Pipeline Co., 485 U.S. 293

(1988), does not reject the relevance of these differing

historical contexts (contra Pet. 17-18). In Schneidewind,

the Court observed that the history of the Natural Gas

Act did not easily answer the question presented there,

12 Petitioners also err in relying (Pet. 16-17) on the Mann-

Elkins Act, which this Court found preempted certain state telegraph regulation more than a century ago. See Western Union Tel.

Co. v. Boegli, 251 U.S. 315 (1920); Postal Tel.-Cable Co. v. WarrenGodwin Lumber Co., 251 U.S. 27 (1919). Under the Mann-Elkins

Act, interstate telegraph was regulated as a common carrier over

which the federal government had broad authority—and thus was

not analogous to Title I information services like broadband. (See

Pet. App. 30a-31a.)

26

i.e., whether a particular state statute fell within the

field that was indisputably preempted by that law. 485

U.S. at 304-05. Here, by contrast, the question is

whether the Communications Act preempts the relevant

field at all. The histories of the Natural Gas and Federal

Power Act demonstrate that petitioners’ reliance on

those laws fails.

Conflict Preemption: Petitioners’ conflict

preemption argument (Pet. 19-21) also fails. Petitioners

abandoned in the Second Circuit the conflict preemption argument that they raise in their petition. Petitioners rely (Pet. 19) on an asserted conflict between the

ABA and the Act’s definition of “telecommunications

carrier,” 47 U.S.C. § 153(51). But petitioners explicitly

abandoned that argument below. See Br. for Pls.-Appellees at 15 n.26. As a result, the court of appeals did not

rule on it. Petitioners’ conflict preemption argument is

thus not properly presented because it was “neither

raised in nor addressed by the Court of Appeals.”

Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513,

527 (1994).

In any event, petitioners’ conflict preemption

argument is meritless. Section 153(51) merely defines

“telecommunications carrier” as “any provider of telecommunications services,” which “shall be treated as a

common carrier under this chapter only to the extent

that it is engaged in providing telecommunications

services.” 47 U.S.C. § 153(51). This rather circular definition says nothing about information services—which

are separately defined, id. § 153(24)—or preemption.13

13 Section § 153(24) defines “information service” as “the offering of a capability for generating, acquiring, storing, transforming,

processing, retrieving, utilizing, or making available information

via telecommunications.”

27

In any event, in the 1996 amendments to the Act that

added this definition, Congress specifically declared

that the amendments shall have “No implied effect” and

“shall not be construed to modify, impair, or supersede”

state law “unless expressly so provided.” Pub. L. 104104, § 601(c)(1), 110 Stat. at 143 (codified as 47 U.S.C.

§ 152 note). This “anti-preemption clause” precludes any

interpretation of the definition that would “oust[] the

state legislature by implication.”14 AT&T Commc’ns of

Ill., Inc. v. Illinois Bell Tel. Co., 349 F.3d 402, 410 (7th

Cir. 2003) (Easterbrook, J.); see ACA Connects, 24 F.4th

at 1245-46.

Lacking any statutory provision that conflicts with

the ABA, petitioners contend (Pet. 20-21) that Congress’s decision not to impose broad federal regulation

on Title I information services impliedly preempts the

States from such regulation. But Congress’s decision not

to grant the FCC broad authority over information

services says nothing about the scope of the States’

sovereign authority over information services. Unlike

federal agencies, States do not need any grant of authority from Congress to regulate.

Although the FCC may classify services like

broadband as either Title I information services or Title

II telecommunications services, that classification decision does not itself preempt state laws. Rather, classifi-

14 Petitioners’ passing reliance (Pet. 21) on 47 U.S.C. § 230(b)(2)

is misplaced. Petitioners did not rely on that provision in the court

of appeals. And that provision of the Communications Decency Act

is a mere “statement of policy,” Mozilla, 940 F.3d at 78 (quotation

and alteration marks omitted), to preserve a “‘vibrant and competitive’” environment for internet content and applications, id. (quoting 47 U.S.C. § 230(b)(2)). It says nothing about preemption, much

less of broadband regulation. See id. at 78-79.

28

cation decides which federal statutory framework

applies. And the consequence of the FCC classifying

broadband as a Title I information service is that the

FCC has only limited ancillary authority that does not

include preempting States from regulating rates. See

ACA Connects, 24 F.4th at 1241-45; Mozilla, 940 F.3d

at 74-86. Permitting the FCC to expand its preemptive

power “in the face of a congressional limitation on its

jurisdiction would be to grant to the agency power to

override Congress.” Louisiana, 476 U.S. at 374-75.

The cases on which petitioners rely (Pet. 20) are not

to the contrary. In Transcontinental Gas Pipe Line

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

409 (1986), a State was precluded from regulating

certain natural gas rates because Congress had preempted the field—which Congress did not do here. 15 Transcontinental did not establish that “deliberate federal

inaction”—as in Title I—will “always imply preemption” of state law. See Puerto Rico Dep’t of Consumer

Affs. v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988).

Indeed, that rule simply “cannot be,” because “[t]here is

no federal pre-emption in vacuo,” without “a federal

statute to assert it.” Id.

15 See also Northwest Cent. Pipeline Corp. v. State Corp.

Comm’n, 489 U.S. 493, 514 (1989) (explaining that Transcontinental was a field preemption decision).

29

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted,

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

JUDITH N. VALE

Deputy Solicitor General

PHILIP J. LEVITZ

Senior Assistant

Solicitor General

barbara.underwood@ag.ny.gov

October 2024

* Counsel of Record