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

No. 24A138

___________

IN THE

SUPREME COURT OF THE UNITED STATES

___________

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,

Applicants,

v.

LETITIA A. JAMES, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF NEW YORK,

Respondent.

___________

REPLY BRIEF IN SUPPORT OF

APPLICATION FOR A STAY OF THE JUDGMENT OF THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

UPON THE GRANTING OF PETITION FOR 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 Applicant

ACA Connects – America’s

Communications Association

JARED P. MARX

HWG, LLP

1919 M Street, N.W., 8th Floor

Washington, D.C. 20036

(202) 730-1328

Counsel for Applicant

Satellite Broadcasting and

Communications Association

October 30, 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 Applicants

New York State Telecommunications

Association, Inc., CTIA – The Wireless

Association, NTCA – The Rural

Broadband Association, and USTelecom

– The Broadband Association

RULE 29.6 STATEMENTS

Applicants’ Statements pursuant to Rule 29.6 were set forth at pages i-ii of

the stay application, and there are no amendments to those Statements.

i

TABLE OF CONTENTS

Page

RULE 29.6 STATEMENTS ............................................................................................ i

TABLE OF AUTHORITIES ......................................................................................... iii

ARGUMENT .................................................................................................................. 2

CONCLUSION............................................................................................................... 7

ii

TABLE OF AUTHORITIES

Page

CASES

Arizona v. Mayorkas, 143 S. Ct. 478 (2022) .................................................................. 2

Career Colls. & Schs. of Texas v. U.S. Dep’t of Educ., 98 F.4th 220

(5th Cir. 2024) ..................................................................................................... 5

Garland v. Vanderstok, 144 S. Ct. 44 (2023) ................................................................ 2

Graves v. Barnes, 405 U.S. 1201 (1972) ........................................................................ 3

Hollingsworth v. Perry, 558 U.S. 183 (2010) ..................................................... 3, 4, 6-7

Maryland v. King, 567 U.S. 1301 (2012)................................................................... 2, 4

Merrill v. Milligan, 142 S. Ct. 879 (2022) ..................................................................... 3

Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, Owned by

Sandra Townes Powell, 915 F.3d 197 (4th Cir. 2019) ....................................... 5

Ohio v. EPA, 144 S. Ct. 2040 (2024) ............................................................................. 2

Roche, In re, 448 U.S. 1312 (1980) ................................................................................ 3

Ross v. National Urb. League, 141 S. Ct. 18 (2020) ..................................................... 2

ZF Auto. US, Inc. v. Luxshare, Ltd., 142 S. Ct. 416 (2021) .......................................... 2

ADMINISTRATIVE DECISIONS

Order Adopting 2024 Settlement Agreement, Case 15-M-0388

(N.Y.P.S.C. Aug. 15, 2024) .................................................................................. 6

CONSTITUTION AND STATUTES

U.S. Const. amend. XI ................................................................................................... 5

Affordable Broadband Act, N.Y. Gen. Bus. Law § 399-zzzzz ....................... 1, 2, 4, 6, 7

iii

REPLY BRIEF IN SUPPORT OF

APPLICATION FOR A STAY OF THE JUDGMENT OF THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

UPON THE GRANTING OF PETITION FOR WRIT OF CERTIORARI

___________

To the Honorable Sonia Sotomayor, Associate Justice of the United States

Supreme Court and Circuit Justice for the Second Circuit:

New York had the opportunity in August to argue that applicants do not

satisfy the factors for granting a stay while this Court considers their petition for

a writ of certiorari. Rather than take that opportunity, New York stipulated that

it would not enforce the Affordable Broadband Act (“ABA”) against applicants’

members.1 That stipulation ends “30 days after the date when [this] Court decides

whether to grant or deny the . . . petition for a writ of certiorari.”2

Applicants thus do not need a stay pending this Court’s decision to grant or

deny their petition for a writ of certiorari (No. 24-161). Applicants already have

that relief. The only open question is whether, if this Court grants that petition,

New York should be prohibited from enforcing the ABA while this Court considers

whether federal law preempts the ABA’s first-of-its-kind broadband rate regulation,

as the dissenting Judge below and the district court correctly held.

The answer is yes. The combination of a grant of certiorari and the

“considered analysis” in Judge Sullivan’s dissent and Judge Hurley’s order granting

a preliminary injunction raises “a fair prospect that this Court will reverse the

1 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. Aug. 8, 2024).

2 Id. Attach., Supplemental Stipulation ¶ 3.

decision below.” Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in

chambers). Applicants have also demonstrated that enforcement of the ABA would

cause them irreparable harm and that a stay is in the public interest — points

New York conceded by stipulating in 2021 to a permanent injunction and twice

stipulating in 2024 not to enforce the ABA despite the Second Circuit’s ruling in

New York’s favor.

Although New York willingly stipulated to a stay that lasts while the Court

considers the certiorari petition — but drew the line at a continued stay if the Court

grants that petition — New York’s opposition noticeably lacks any explanation for

its line drawing. Nor does New York cite a single instance in which an applicant

obtained a stay while the Court considers a certiorari petition without also

maintaining that relief once the petition is granted. On the contrary, the Court’s

normal practice where “the petition is granted” is for the stay to remain in effect

while the Court considers the merits and “terminate upon the sending down of

the judgment of this Court.” E.g., Ohio v. EPA, 144 S. Ct. 2040, 2058 (2024).3

The Court should follow that practice here.

ARGUMENT

1.

New York’s stipulation materially alters the considerations pertinent

to this stay application. Normally, a party seeking “a stay pending the filing and

disposition of a petition for a writ of certiorari” must first show “a reasonable

3 See also, e.g., Garland v. Vanderstok, 144 S. Ct. 44 (2023); Arizona v.

Mayorkas, 143 S. Ct. 478 (2022); ZF Auto. US, Inc. v. Luxshare, Ltd., 142 S. Ct. 416

(2021); Ross v. National Urb. League, 141 S. Ct. 18 (2020).

2

probability that four Justices will consider the issue sufficiently meritorious to

grant certiorari.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam).

But New York voluntarily gave applicants relief that lasts through — and 30 days

beyond — the Court’s decision on whether to grant certiorari. Therefore, New

York’s arguments (at 16-20) that the Court should deny certiorari are irrelevant

to this motion.4

2.

The next consideration is whether there is “a fair prospect” — not a

substantial likelihood or even reasonable probability — “that a majority of the

Court will vote to reverse the judgment below.” Hollingsworth, 558 U.S. at 190;

accord Merrill v. Milligan, 142 S. Ct. 879, 880 (2022) (Kavanaugh, J., concurring in

grant of applications for stays). But that factor is important “in cases presented on

direct appeal — where [the Court] lack[s] the discretionary power to refuse to decide

the merits.” Graves v. Barnes, 405 U.S. 1201, 1203 (1972) (Powell, J., in chambers).

By contrast, in cases where “review is sought by the more discretionary

avenue of writ of certiorari,” “the consideration of prospects for reversal dovetails”

with the question whether the Court will hear the case and so “has less independent

significance.” In re Roche, 448 U.S. 1312, 1314 n.1 (1980) (Brennan, J., in chambers).

Because applicants seek relief that will apply only after the Court grants certiorari,

there is little work for the second criterion to perform. Indeed, the decision to grant

certiorari implies the existence of a fair prospect of reversal of the Second Circuit’s

4 New York’s arguments are wrong, as applicants explain in their

contemporaneously filed reply brief in support of their petition for a writ

of certiorari.

3

judgment. In addition, the presence of “considered analysis . . . on the other side” —

here, found in Judge Sullivan’s dissent and Judge Hurley’s preliminary injunction

decision — is sufficient to establish “a fair prospect that this Court will reverse the

decision below.” King, 567 U.S. at 1303. New York’s arguments (at 20-27) that

applicants “would [not] be likely to prevail” on the merits misstate the standard.5

3.

The third factor requires showing “a likelihood that irreparable harm

will result from the denial of a stay.” Hollingsworth, 558 U.S. at 190. Applicants’

members’ declarations satisfy that requirement. They identify the likely cancellation

of existing network expansion plans, unrecoverable losses of revenue and

administrative costs, and the loss of goodwill should the law temporarily take effect

before this Court holds that federal law preempts it. See Stay App. 21-24. Against

this showing, New York raises the same arguments that the district court rejected,

see New York State Telecomms. Ass’n, Inc. v. James, 544 F. Supp. 3d 269, 276-79

(E.D.N.Y. 2021) (“NYSTA I ”) (Stay App. Ex. 1), and that New York abandoned

when it stipulated to the entry of a permanent injunction, see Stay App. Ex. 4.

For example, New York again notes (at 30-31) that, in 2021, many smaller

providers received temporary exemptions from the ABA. But as Judge Hurley

explained, the “granted temporary exemptions . . . do not guarantee that [those

companies] will avoid irreparable injury,” as the “temporary exemptions merely give

the [state agency] more time to decide (viz. potentially deny) the requests, pursuant

to ‘criteria and factors’ not yet identified.” NYSTA I, 544 F. Supp. 3d at 278. New

5 They, too, are wrong for the reasons in applicants’ reply brief in support of

their petition for a writ of certiorari.

4

York concedes (at 10 n.6) that the state agency still has not even re-started, much

less completed, its review of the exemption requests or specified the criteria and

factors that will apply. And declarants for three of those companies each explain

that the “uncertainty” about whether they will ultimately receive a permanent

exemption prevents them from “mak[ing] forward-looking plans” now. Stay App.

Ex. 10 ¶ 16 (“Northrup Decl.”); see id. Ex. 12 ¶ 12 (“Miller Decl.”); id. Ex. 11 ¶ 22

(“Faulkner Decl.”) (noting that the continued failure to “articulate[ ] the standards”

leaves open the likelihood the state agency will “impose financially burdensome

conditions in connection with waiver requests”).

As for AT&T and Verizon, New York does not dispute that they will suffer

unrecoverable monthly, per-customer revenue losses of $30 to $60, for each customer

who signs up for the ABA-mandated rates, plus $725,000 to $1,000,000 each in

compliance costs. See Stay App. Ex. 13 ¶¶ 8-10 (“Coakley Decl.”); Ex. 14 ¶¶ 3, 5

(“Wilkin Decl.”). Instead, New York asserts (at 30 & n.14) that, as large companies,

they can absorb those losses. But when monetary losses are unrecoverable — which

the Eleventh Amendment makes so here, see NYSTA I, 544 F. Supp. 3d at 276 — it

is not “the magnitude but the irreparability that counts.” Career Colls. & Schs. of

Texas v. U.S. Dep’t of Educ., 98 F.4th 220, 238 (5th Cir. 2024); see also, e.g., Mountain

Valley Pipeline, LLC v. 6.56 Acres of Land, Owned by Sandra Townes Powell, 915

F.3d 197, 218 (4th Cir. 2019) (explaining that, where “monetary damages will be

5

unavailable,” “there is no bar to treating [monetary] losses as irreparable injury

justifying preliminary relief ”).6

New York dismisses (at 32) as “speculative” the loss of goodwill that providers

would face should they revert to their existing marketplace offerings after the ABA

briefly requires them to offer broadband at lower prices and on different terms. But

there is nothing speculative about it. The ABA’s rates and terms are inconsistent

with providers’ existing offerings. See Stay App. Ex. 10 ¶ 9 (Northrup Decl.); Ex. 11

¶¶ 14-17 (Faulkner Decl.); Ex. 12 ¶¶ 2, 7-8 (Miller Decl.); Ex. 13 ¶¶ 9-10 (Coakley

Decl.); Ex. 14 ¶ 3 (Wilkin Decl.). Those providers would likely revert to offerings

consistent with marketplace conditions after the Court strikes down the ABA,

costing them consumers’ goodwill. See id. Ex. 10 ¶ 13 (Northrup Decl.); Ex. 11

¶¶ 20-21 (Faulkner Decl.); Ex. 12 ¶ 11 (Miller Decl.); Ex. 13 ¶ 11 (Coakley Decl.);

Ex. 14 ¶ 4 (Wilkin Decl.).

4.

Finally, in “close cases” the Court also “will balance the equities and

weigh the relative harms to the applicant and to the respondent.” Hollingsworth,

6 New York also discusses (at 29-30) Charter and Altice, which are not members

of any petitioning association (though New York has agreed not to enforce the ABA

against members of their trade association (NCTA) on the same terms as in its

stipulation with applicants here). Those cable companies’ low-income offerings are

not voluntary, but the result of a condition New York imposed when approving two

separate 2016 mergers. When that condition expired, Charter increased the price

(and speed) of its offering. See Order Adopting 2024 Settlement Agreement at 5-6,

Case 15-M-0388 (N.Y.P.S.C. Aug. 15, 2024). New York, however, claimed the

condition “had no expiration date” — that is, that its merger condition had required

Charter to sell its low-income offering at $14.99 per month in perpetuity. Id. at 11.

Charter settled that dispute by agreeing to extend the condition for four more years.

See id. Attach. As New York notes, Altice has since requested the same outcome.

See Galasso Decl. ¶ 20.

6

558 U.S. at 190. Here, the case is not close, but the balancing is easy. New York

acknowledges (at 29) that nearly all New Yorkers already have at least one affordable

broadband option available to them, without the ABA. And New York twice agreed

not to enforce the ABA in 2024, despite the Second Circuit’s ruling in its favor,

instead allowing marketplace conditions to persist. See Stay App. Ex. 5 (Stipulation

(June 11, 2024)); Supplemental Stipulation (Aug. 7, 2024). New York offers no

explanation why this Court’s grant of certiorari could swing the balance of equities

in favor of a first-of-its-kind intrusion into the marketplace. On the contrary, New

York has acknowledged the benefit of “avoid[ing] potential uncertainty or confusion

about the effect of the Affordable Broadband Act” while litigation continues.

Stipulation at 3. If this Court grants certiorari, that “potential uncertainty” will

persist. Therefore, the ABA should remain stayed — as it has been since mid-2021

— until this Court resolves this case on the merits.

CONCLUSION

As explained in the petition for a writ of certiorari and reply, the Court

should grant the petition. Once it does so, the Court should also stay the Second

Circuit’s decision — thereby preventing the ABA from taking effect — until this

Court sends down its judgment.

7

Respectfully submitted,

__________________________________

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 Applicants

New York State Telecommunications

Association, Inc., CTIA – The Wireless

Association, NTCA – The Rural

Broadband Association, and USTelecom

– The Broadband Association

JEFFREY A. LAMKEN

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Avenue, N.W.

Washington, D.C. 20037

(202) 556-2000

Counsel for Applicant

ACA Connects – America’s

Communications Association

JARED P. MARX

HWG, LLP

1919 M Street, N.W., 8th Floor

Washington, D.C. 20036

(202) 730-1328

Counsel for Applicant

Satellite Broadcasting and

Communications Association

October 30, 2024

8