Reply 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 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

__________

REPLY BRIEF FOR PETITIONERS

__________

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

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 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

RULE 29.6 STATEMENTS

Petitioners’ Statements pursuant to Rule 29.6 were

set forth at pages iii-iv of the petition for a writ of

certiorari, and there are no amendments to those

Statements.

ii

TABLE OF CONTENTS

Page

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

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

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

I. THE SECOND CIRCUIT’S DECISION

IS THE CASE FOR RESOLVING THIS

ISSUE ............................................................... 2

II. THE SECOND CIRCUIT’S DECISION

RAISES ISSUES OF PROFOUND

NATIONAL IMPORTANCE ............................ 4

III. THE SECOND CIRCUIT ERRED

IN HOLDING THAT STATES CAN

REGULATE RETAIL BROADBAND

RATES .............................................................. 6

CONCLUSION.......................................................... 11

iii

TABLE OF AUTHORITIES

CASES

Page

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

2022)....................................................................... 3

ACA Connects v. Frey, 471 F. Supp. 3d 318

(D. Me. 2020) ......................................................... 3

Allen B. Dumont Lab’ys v. Carroll, 184 F.2d 153

(3d Cir. 1950) ......................................................... 7

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

(1999) ..................................................................... 9

Bastien v. AT&T Wireless Servs., Inc., 205 F.3d

983 (7th Cir. 2000) ................................................. 8

California v. FCC, 39 F.3d 919 (9th Cir. 1994) ....... 10

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

(1984) ................................................................... 11

CCIA v. FCC, 693 F.2d 198 (D.C. Cir. 1982) ....... 9, 10

Cellco P’ship v. FCC, 700 F.3d 534 (D.C. Cir. 2012)........ 9

Griffith v. Connecticut, 218 U.S. 563 (1910) .............. 6

Head v. New Mexico Bd. of Exam’rs in Optometry, 374 U.S. 424 (1963) ......................................... 7

Howard v. America Online, Inc., 208 F.3d 741

(9th Cir. 2000)...................................................... 10

Lebron v. National R.R. Passenger Corp., 513 U.S.

374 (1995) ............................................................ 11

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

355 (1986) .............................................................. 6

Minnesota Pub. Utils. Comm’n v. FCC, 483 F.3d

570 (8th Cir. 2007) ................................................. 9

Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir. 2019) ........ 3

iv

Nebbia v. New York, 291 U.S. 502 (1934) .................. 6

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

Co., 282 U.S. 251 (1931) ........................................ 6

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

Co., 251 U.S. 27 (1919) .......................................... 8

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

293 (1988) .............................................................. 7

Sprietsma v. Mercury Marine, 537 U.S. 51 (2002)......... 7

Teague v. Lane, 489 U.S. 288 (1989) ........................ 11

Transcontinental Gas Pipe Line Corp. v. State

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

(1986) ..................................................................... 7

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

1968), aff ’d mem., 396 U.S. 556 (1970)................. 3

USTelecom v. FCC, 825 F.3d 674 (D.C. Cir. 2016) ...... 10

Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) .......... 9

Yee v. City of Escondido, 503 U.S. 519 (1992) ........... 6

ADMINISTRATIVE DECISIONS

2015 Broadband Progress Report, Inquiry

Concerning the Deployment of Advanced

Telecommunications Capability to All Americans in a Reasonable and Timely Fashion,

30 FCC Rcd 1375 (2015) ..................................... 8-9

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......................................2, 4, 5

v

Declaratory Ruling, Report and Order, and

Order, Restoring Internet Freedom, 33 FCC

Rcd 311 (2018) (“2018 Order”) ....................... 10-11

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

the Open Internet, 30 FCC Rcd 5601 (2015)

(“2015 Order”) ........................................................ 5

CONSTITUTION AND STATUTES

U.S. Const. art. I, § 8, cl. 3 (Commerce Clause) ........ 7

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

et seq. ....................................................1, 3, 4, 7, 11

47 U.S.C. § 152 .................................................. 6, 7

47 U.S.C. § 152(b) .................................................. 8

47 U.S.C. § 153(51) .......................................... 9, 10

47 U.S.C. § 332 .................................................. 7, 8

47 U.S.C. § 332(c)(3)(A) ......................................... 8

47 U.S.C. § 414 ...................................................... 8

47 U.S.C. § 1702(h)(4)(B) ...................................... 5

47 U.S.C. § 1702(h)(b)(D) ...................................... 5

Interstate Commerce Act, ch. 104, § 22, 24 Stat.

379, 387 (1887)....................................................... 8

Telecommunications Act of 1996, Pub. L. No.

104-104, 110 Stat. 56 ....................................... 9, 10

§ 601(c)(1), reprinted in 47 U.S.C. § 152 note ...... 10

§ 706, 47 U.S.C. § 1302 ...................................... 8, 9

§ 706(a), 47 U.S.C. § 1302(a).............................. 8, 9

Affordable Broadband Act, N.Y. Gen. Bus. Law

§ 399-zzzzz ..............................................1, 4, 5, 6, 9

vi

OTHER MATERIALS

Oral Arg. Calendar, https://www.ca6.uscourts.

gov/sites/ca6/files/documents/oral_argument_

calendars/10282024_arg.pdf ................................. 2

Whether a State can set the rates for broadband

internet access service — an interstate communications service — is a question of exceptional national

importance. New York does not seriously dispute that

the Affordable Broadband Act (“ABA”) is the first of

its kind. No other government (at any level) has ever

enacted a statute that regulates retail broadband rates.

New York does not dispute that the Second Circuit’s

decision in NYSTA II opens the door to other States

following suit and a patchwork regime unknown

in the internet’s history. Nor does New York deny

that NYSTA II reaches far beyond broadband. It

holds that the federal Communications Act does not

preempt state rate regulation of interstate information

services, a category that also includes video- and

music-streaming services, cloud-storage services, and

dozens more.

New York draws the wrong conclusion from the

connection between this case and the Sixth Circuit’s

review of the FCC’s recent (stayed) attempt to turn

broadband into a public-utility offering. The Sixth

Circuit’s finding that broadband is likely an interstate

information service immune from FCC public-utility

(including rate) regulation highlights the need for this

Court’s review here. According to the Second Circuit,

an FCC loss at the Sixth Circuit declares open season

for all 50 States to regulate broadband rates because

Congress did not explicitly authorize the FCC to do

so. Yet the same interpretive principles that bar the

FCC from finding implicit statutory authority to treat

broadband as a public-utility service demand rejecting

the Second Circuit’s reading of that Act to invite,

silently, each of the 50 States to claim such authority.

This Court should grant the petition. This is the

case for reviewing this issue (Part I infra), presents

questions of exceptional national importance (Part II

2

infra), and requires review to remedy serious legal

error (Part III infra). Finally, if this Court has any

doubt about the interaction between this case and the

pending Sixth Circuit case, or broadband’s importance

to the national economy, the Court should call for the

views of the Solicitor General.

ARGUMENT

I. THE SECOND CIRCUIT’S DECISION IS THE

CASE FOR RESOLVING THIS ISSUE

1. New York’s claim (at 14-16) that ongoing litigation over the FCC’s judicially stayed 2024 Order renders this case a poor vehicle for review is backwards.

Setting aside the State’s speculation (at 14) that the

law might be in “flux,” the Sixth Circuit litigation —

which has been significantly accelerated, with oral

argument tomorrow1 — underscores the need to grant

the petition, or at least hold it until resolution of

litigation over the 2024 Order (whether it ends with

the Sixth Circuit or before this Court).

2. To attack this vehicle, New York muses (at 16

n.9) that the Second Circuit might have lacked

jurisdiction sufficient to rule in New York’s favor and

vacate the district court’s injunction. But the State’s

warning (id.) that this Court “might well need to

consider” its jurisdiction is evergreen, not a reason to

deny the petition — especially as New York (here and

below) agrees that the Second Circuit had jurisdiction.

3. Finally, the State contends (at 17-18) that

NYSTA II does not implicate a circuit split. That is

because no other federal appellate court has ever read

1 See Oral Arg. Calendar (Judges Griffin, Kethledge, and

Bush), https://www.ca6.uscourts.gov/sites/ca6/files/documents/

oral_argument_calendars/10282024_arg.pdf.

3

the Communications Act to allow States to regulate

directly the rates of interstate communications services:

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

2019) (per curiam), the court acknowledged that

conflicting state laws are preempted, while rejecting the FCC’s assertion of authority to expressly

preempt all possible future state regulation of

broadband, even purely intrastate regulation that

did not conflict with federal law. See id. at 85.

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

Cir. 2022), the court did not address rate regulation because California’s statute did not regulate

retail broadband prices; the court also believed

(erroneously) that it was upholding only intrastate

regulation with some effects on interstate service.

See id. at 1247.2

The district court cases the State cites (at 18) likewise

do not uphold state rate regulation of interstate

communications services. Cf. ACA Connects v. Frey,

471 F. Supp. 3d 318, 322-24 (D. Me. 2020) (addressing

state privacy law); TV Pix, Inc. v. Taylor, 304 F. Supp.

459, 463 (D. Nev. 1968) (addressing what the reviewing court deemed to be intrastate cable regulation),

aff ’d mem., 396 U.S. 556 (1970) (per curiam).

Stepping back from the State’s myopic framing

(at 17), NYSTA II conflicts with decades of decisions,

including from this Court, rejecting state regulation

2 New York disputes this, quoting (at 17 n.10) the Ninth Circuit’s (incorrect) characterization of the preemption argument —

that plaintiffs-appellants viewed California’s law as “state regulation of intrastate communications that touches on interstate

communications,” 24 F.4th at 1247 (in fact, they argued that the

law directly regulated interstate communications services). That

mischaracterization confirms that petitioners correctly describe

the Ninth Circuit’s error.

4

of interstate communications services through publicutility-style measures. See Pet. 16-17; see also NCTA

Amicus Br. 12-13.

II. THE

SECOND

CIRCUIT’S

DECISION

RAISES ISSUES OF PROFOUND NATIONAL

IMPORTANCE

1. New York does not dispute that the Second

Circuit’s decision invites all 50 States to regulate the

rates of any interstate information service without

running afoul of the federal Communications Act. Nor

does the State dispute that, if the Sixth Circuit rejects

the 2024 Order’s common-carrier classification of broadband, NYSTA II welcomes all 50 States to regulate

broadband rates specifically because broadband is immune from federal rate regulation. Each of these consequences is enough to necessitate this Court’s review.

New York instead begins (at 18) with the remarkable claim that the ABA is not “public-utility-style”

regulation. The district court rejected that argument

so soundly, see App. 79a-81a, that New York did not

repeat it before the Second Circuit. All three appellate

judges also recognized the ABA as “ex ante rate regulation on broadband.” App. 59a (Sullivan, J., dissenting); see also App. 34a (majority; same). New York’s

claim that the ABA is not state rate regulation is not

serious, as evidenced by New York spilling so much

ink defending state authority to regulate broadband

rates.3

3 Before the Second Circuit (see Br. 25, 30-31), New York

acknowledged that the combination of Title II classification of

broadband and forbearance from rate regulation would preempt

the ABA, and the Second Circuit majority agreed. See App. 33a34a. Although the stayed 2024 Order does both things, New York

now claims (at 14 n.8) that the ABA is a “state broadband affordability program[ ]” of the kind the 2024 Order invites. Yet in that

5

2. The State also seeks to minimize the significant

consequences that will befall broadband providers

and consumers if NYSTA II disrupts the decades-long

status quo of legislators and bureaucrats not setting

broadband prices. New York asserts (at 20-21) that

broadband investment did not decline during the brief

window (2015-2017) when the FCC classified broadband

as a Title II, common-carrier telecommunications

service. That is wrong — investment declined — and

it ignores that the FCC did not then set broadband

rates. See 2015 Order ¶¶ 443, 499. The ABA is the

first time that any government at any level enacted

a statute regulating retail broadband rates in the

United States.

The State posits (at 18-19) that the three largest

broadband providers in New York already have affordable offerings while smaller providers might obtain

exemptions — so no harm, no foul. That illustrates

the propriety of preserving the status quo in which

market competition has yielded better service at

lower cost. See Stay App. 27. But the ABA’s heavyhanded dictates — coupled with smaller providers’ uncertainty about obtaining and maintaining exemptions,4

order the FCC cited the federal Broadband Equity Access and

Deployment (“BEAD”) program as the sole “example” of how

States may “promot[e] broadband affordability.” 2024 Order

¶ 386 n.1578; see also id. ¶ 275 n.1145. Providers that voluntarily participate in BEAD must offer at least one “low-cost broadband service option” over the federal-funded network. 47 U.S.C.

§ 1702(h)(4)(B). But unlike the ABA, Congress did not prescribe

capped prices for such low-cost offerings and, instead, expressly

prohibited construing the low-cost-offering obligation to “authorize . . . regulat[ing] the rates charged for broadband service.” Id.

§ 1702(h)(5)(D).

4 See Stay App. Ex. 10 ¶¶ 14-16 (Northrup Decl.); Ex. 11 ¶ 22

(Faulkner Decl.); Ex. 12 ¶ 12 (Miller Decl.); see also Stay App. 23

n.15.

6

and the possibility of New York or other States setting

even lower rates — will disrupt the status quo of

marketplace competition and investment in broadband

deployment. See id. at 22-24 (citing declarations).

3. Finally, New York’s observation (at 20) that no

other State has yet regulated retail broadband rates

is cold comfort to providers. Petitioners obtained a

preliminary injunction shortly before the ABA took

effect and, even after NYSTA II, New York twice

agreed not to disrupt that status quo. See Stay Reply

7. That is why this is the case to hear. If the ABA

were to take effect, it would be a watershed moment.

Many state legislators and bureaucrats would surely

then follow New York’s lead.5

III. THE SECOND CIRCUIT ERRED IN

HOLDING THAT STATES CAN REGULATE

RETAIL BROADBAND RATES

Field Preemption: Section 152 is an express statement by the 1934 Congress precluding States from

regulating interstate communications services. See

Pet. 15-17; see also Chamber Amicus Br. 3-5, 9-17.

This Court recognized the “plenary” federal authority

over the field of interstate communications services

in Louisiana Public Service Commission v. FCC, 476

U.S. 355, 360 (1986), which — contrary to New York’s

assertion (at 24) — was an interpretation of Section

152 (part of Title I), not a holding limited to interstate

common-carrier (Title II) communications services.

5 New York cites (at 20) a handful of cases involving other

state price regulation — but of milk produced and sold in-state

(Nebbia), apartment rents (Yee), insurance products (O’Gorman

& Young), and state corporate and personal (but not national

bank) interest rates (Griffith). None involved interstate communications services, let alone broadband.

7

The State’s principal response (at 21-22) confuses

how the Court expects modern Congresses to express

field-preemptive intent — via a “pervasive” scheme

that leaves no room for any state regulation — with

what sufficed in an earlier age. See Pet. 15-17; Chamber Amicus Br. 9-17. And this Court has recognized

that Congress’s decision that some interstate commerce

should not be subject to public-utility regulation does

not thereby “give the States the power” to do what

federal regulators cannot. Transcontinental Gas Pipe

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

U.S. 409, 422 (1986); see also NCTA Amicus Br. 16.6

New York disputes (at 24-25) that Section 152

evinces preemptive intent, but it cites only Head v.

New Mexico Board of Examiners in Optometry, 374

U.S. 424 (1963), which involved regulating advertisements, not interstate radio service. As to those services,

it is “clear” that Congress “occupied fully the field,” so

that Congress’s denial to the FCC of a specific power

“does not mean that the States may exercise” it. Allen

B. Dumont Lab’ys v. Carroll, 184 F.2d 153, 155-56 (3d

Cir. 1950).

New York’s trio of arguments (at 23) that other

parts of the Communications Act bely field preemption are makeweights.

First, the State points to the express preemption

provision in Section 332. But an “express preemption”

clause “does not bar the ordinary working” of other

preemption principles. Sprietsma v. Mercury Marine,

537 U.S. 51, 65 (2002) (cleaned up). Further, Section

6 Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988),

already rejected New York’s erroneous claim (at 25) that this

Court’s earlier holdings recognizing field preemption springing

from provisions parallel to Section 152 turned on the dormant

Commerce Clause. See 485 U.S. at 305-06.

8

332 expressly preempts state regulation of intrastate

services — an expansion of federal authority beyond

its “plenary” interstate domain.7 This federal expansion implies nothing about States’ authority to regulate interstate services.

Second, the State points to the statutory savings

clause, see 47 U.S.C. § 414, which preserves preexisting

state remedies to address fraudulent business practices in the provision of interstate service. Section 414

copies an identical provision from the Interstate

Commerce Act, see ch. 104, § 22, 24 Stat. 379, 387

(1887), which this Court has held is field preemptive

— including as to interstate communications — despite

the presence of the same savings clause. See Postal

Tel.-Cable Co. v. Warren-Godwin Lumber Co., 251

U.S. 27, 31 (1919).8

Third, the State claims that Congress’s reference to

“price cap regulation” in Section 706, as a means by

which the FCC and state public-utility commissions

could “encourage the deployment” of “advanced

telecommunications capability,” 47 U.S.C. § 1302(a),

permits States to regulate broadband rates. But even

assuming broadband is an “advanced telecommunications capability,” which is not at all clear,9 Section 706

7

Section 332(c)(3)(A) preempts state regulation of mobile

services — which can be used to make both intrastate and interstate calls — “[n]otwithstanding” the States’ otherwise-reserved

authority over intrastate services in Section 152(b).

8 Section 414 also does not create state authority where none

has ever existed, such as over “rates or other issues specially

reserved to federal control.” Bastien v. AT&T Wireless Servs.,

Inc., 205 F.3d 983, 987 (7th Cir. 2000).

9 The FCC has acknowledged that “ ‘advanced telecommunications capability’ has a unique definition in section 706 that differs

from the term ‘broadband’ in other contexts.” 2015 Broadband

9

applies only to state agencies “with regulatory jurisdiction over telecommunications services.” Id. (emphasis added). The premise of NYSTA II is that broadband is not a Title II telecommunications service, but

a Title I information service. So Section 706 provides

no defense of the Second Circuit’s decision.

In all events, the 1996 Act “unquestionably” expanded

federal control of communications services, taking “the

regulation of local telecommunications competition

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

Bd., 525 U.S. 366, 378 n.6 (1999). And it would be

“surpassing strange” to think Congress intended for a

“federal regime” to be “administered by 50 independent

state[s].” Id.

Conflict Preemption: The ABA conflicts with

Congress’s express limitation of “common carrier”

regulation to “telecommunications services.” 47 U.S.C.

§ 153(51); see also NCTA Amicus Br. 6-7, 12-15.

Because broadband remains an information service

today, it is statutorily immune from rate regulation.

See Verizon v. FCC, 740 F.3d 623, 650 (D.C. Cir. 2014);

Cellco P’ship v. FCC, 700 F.3d 534, 538 (D.C. Cir.

2012); cf. Minnesota Pub. Utils. Comm’n v. FCC, 483

F.3d 570, 580 (8th Cir. 2007) (finding that federal

law preempts state regulation of VoIP, an information

service, because “any state regulation of an information service conflicts with the federal policy of nonregulation”).

Federal law has never wavered on this point. Before

the 1996 Act, courts consistently prohibited rate regulation of precursors to information services, known

as “enhanced services.” See, e.g., CCIA v. FCC, 693

Progress Report, Inquiry Concerning the Deployment of Advanced

Telecommunications Capability to All Americans in a Reasonable

and Timely Fashion, 30 FCC Rcd 1375, ¶ 1 n.1 (2015).

10

F.2d 198, 209-12 (D.C. Cir. 1982); California v. FCC,

39 F.3d 919, 933 (9th Cir. 1994); see also USTelecom

v. FCC, 825 F.3d 674, 691 (D.C. Cir. 2016) (explaining

regulatory history). Those cases involved state efforts

to regulate only intrastate enhanced services, which

courts still halted when those state efforts spilled into

the interstate sphere, regulating interstate rates in

conflict with the federal regime. See, e.g., CCIA, 693

F.2d at 209-12; California, 39 F.3d at 933; see also

NCTA Amicus Br. 11-12.10 That history leaves New

York without an argument, substantive or procedural.

Regarding substance, the State’s resort (at 27) to the

1996 Act’s savings clause in § 601(c)(1) fails because it

was federal law before 1996 that interstate enhanced

services (now information services) are not subject to

common-carrier regulation at the federal level. See

Howard v. America Online, Inc., 208 F.3d 741, 752-53

(9th Cir. 2000). The implied conflict-preemptive effect

from that preexisting law does not arise from the 1996

Act or its amendments — including Congress’s decision to add Section 153(51) to codify that preexisting

law — so the savings provision in § 601(c)(1) about

new law springing from the 1996 Act does not apply.

See Chamber Amicus Br. 18-19; NCTA Amicus Br.

7-10.

New York therefore relies on procedure, asserting

four times (at 3, 12, 17-18, 26) that petitioners abandoned this conflict-preemption argument below. Not

so. Petitioners raised three preemption arguments to

the district court, which found both field preemption

and conflict preemption based on the FCC’s 2018

10 None of these States sought or claimed the authority — as

New York does here — to regulate directly the rates of an interstate enhanced service.

11

Order, and so did not reach statutory conflict preemption. See App. 76a-83a. Before the Second Circuit,

petitioners did “not rais[e]” their additional conflictpreemption argument, because it was unnecessary

to affirm the judgment. Br. 15 n.26. Even so, the

Second Circuit majority concluded, erroneously, that

it would “rewrite the Communications Act” for conflict

preemption to arise from Title I of that Act. App. 36a;

accord App. 38a. In all events, this Court can reverse

NYSTA II and reinstate the district court’s judgment

for any reason the record supports. See, e.g., Capital

Cities Cable, Inc. v. Crisp, 467 U.S. 691, 697-98 (1984)

(deciding federal-preemption question even though

the court of appeals did not address it); Lebron v.

National R.R. Passenger Corp., 513 U.S. 374, 379

(1995) (“Our traditional rule is that once a federal

claim is properly presented, a party can make any

argument in support of that claim; parties are not

limited to the precise arguments they made below.”)

(cleaned up); see also Teague v. Lane, 489 U.S. 288,

300 (1989) (plurality) (deciding based on argument

“raised only in an amicus brief ”).

CONCLUSION

The petition for a writ of certiorari should be

granted.

12

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

October 30, 2024

Counsel for Petitioners

New York State Telecommunications Association, Inc., CTIA –

The Wireless Association,

NTCA – The Rural Broadband

Association, and USTelecom –

The Broadband Association