Petition for Rehearing — 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

__________

PETITION FOR REHEARING

__________

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

January 10, 2025

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

REASONS FOR GRANTING THE PETITION ......... 1

CONCLUSION............................................................ 6

CERTIFICATE OF COUNSEL

iii

TABLE OF AUTHORITIES

Page

CASES

Abdirahman v. United States, 585 U.S. 1046

(2018) ..................................................................... 1

Boumediene v. Bush, 551 U.S. 1160 (2007) ............... 1

In re: MCP No. 185:

2024 WL 3650468 (6th Cir. Aug. 1, 2024)............... 1

2025 WL 16388 (6th Cir. Jan. 2, 2025) ....1, 2, 3, 4, 6

Loper Bright Enters. v. Raimondo, 603 U.S. 369

(2024) ..................................................................... 4

STATUTES AND RULES

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

et seq. ..............................................................1, 4, 6

47 U.S.C. § 230(b)(2).............................................. 3

47 U.S.C. § 230(f )(2) .............................................. 3

Telecommunications Act of 1996, Pub. L. No.

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

N.Y. Gen. Bus. Law § 399-zzzzz(1)............................. 2

Sup. Ct. R. 44.2 ....................................................... 1, 4

ADMINISTRATIVE MATERIALS

Press Release, FCC, Off. of Comm’r Brendan

Carr, Carr Welcomes Court Order Invalidating President Biden’s Plan to Expand

Government Control of the Internet

Through Title II Regulations (Jan. 2, 2025),

https://docs.fcc.gov/public/attachments/DOC408580A1.pdf ......................................................... 3

iv

OTHER MATERIALS

Craig Aaron, How Big Companies and the Courts

Killed Net Neutrality, Common Dreams

(Jan. 3, 2025), https://www.commondreams.

org/opinion/fcc-net-neutrality ............................... 5

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

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

et al. v. James, No. 24A138 (U.S. filed Aug.

8, 2024) ................................................................... 5

Shiva Stella, Sixth Circuit Ruling on FCC

Authority Threatens Consumer Protections

and Open Internet, Public Knowledge (Jan.

2, 2025), https://publicknowledge.org/sixthcircuit-ruling-on-fcc-authority-threatensconsumer-protections-and-open-internet/ ............ 5

United States v. California, No. 18-cv-2660

(E.D. Cal.):

Mot. for Prelim. Inj., ECF No. 2 (Sept. 30,

2018).................................................................... 4-5

Notice of Voluntary Dismissal, ECF No. 44

(Feb. 8, 2021) ......................................................... 5

Renewed Mot. for Prelim. Inj., ECF No. 21

(Aug. 5, 2020) ......................................................... 5

Pursuant to Rule 44.2, petitioners New York State

Telecommunications Association, Inc., CTIA – The

Wireless Association, ACA Connects – America’s Communications Association, USTelecom – The Broadband

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

Association, on behalf of their respective members

that provide broadband internet access service in New

York, petition for rehearing of this Court’s December

16, 2024 order1 denying their petition for a writ of

certiorari.

REASONS FOR GRANTING THE PETITION

The Sixth Circuit’s recent decision in In re: MCP No.

185, – F.4th –, 2025 WL 16388 (6th Cir. Jan. 2, 2025),

presents “intervening circumstances of a substantial

. . . effect” that arose after this Court’s disposition of

the certiorari petition that warrant granting rehearing (and certiorari). Sup. Ct. R. 44.2. See Abdirahman

v. United States, 585 U.S. 1046 (2018) (granting rehearing); see also Boumediene v. Bush, 551 U.S. 1160

(2007) (same).

1. When this Court denied the petition, a Sixth

Circuit panel had unanimously stayed the FCC’s

latest attempt to transform broadband into a publicutility service—subject to the Communications Act’s

Title II, which includes rate regulation—but its merits

review was ongoing.2

In opposing certiorari, New York cited that ongoing

review as the primary reason to deny the petition:

 “First, this case is a poor vehicle for addressing

the question presented because the governing

1

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

No. 24-161, 2024 WL 5112294 (U.S. Dec. 16, 2024).

2 See In re: MCP No. 185, 2024 WL 3650468 (6th Cir. Aug. 1,

2024) (per curiam).

2

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 [Affordable Broadband Act].” Opp. 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.” Opp. 14.

 “The Second Circuit’s decision here is based on

. . . Title I . . . , 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.”

Id.

 “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.” Opp. 15.

2. Last week, the Sixth Circuit concluded its

review, issuing a unanimous decision holding that

broadband—defined as in New York’s rate-regulation

law3—is an information service regulated under Title

I and, therefore, immune from common-carrier regulation. See MCP No. 185, 2025 WL 16388, at *5-10.

3 Compare MCP No. 185, 2025 WL 16388, at *2 n.1, with

N.Y. Gen. Bus. Law § 399-zzzzz(1).

3

The court put an “end [to] the FCC’s vacillations”

about the regulatory status of broadband under

federal law by “applying the plain meaning” of the

statute to hold that broadband providers “offer only

an ‘information service’ . . . and therefore, the FCC

lacks the statutory authority to impose its desired

net-neutrality policies” by regulating those providers

as common carriers. Id. at *1, *3, *10.

The court found support for that conclusion throughout the Telecommunications Act of 1996. There, Congress both codified the information service definition

and announced its intent “ ‘to preserve the vibrant

and competitive free market that presently exists

for . . . interactive computer services’ ”—including

“ ‘information service[s] . . . that provide[ ] access to the

Internet’ ” (i.e., broadband)—“ ‘unfettered by Federal

or State regulation.’ ” Id. at *7 (quoting 47 U.S.C.

§ 230(b)(2), (f )(2)) (first ellipsis added). The court

found that it would be “strange for Congress to enact

this policy while, in the same bill, shackling Internet

access providers with onerous Title II regulation.” Id.

Commissioner

Carr—President-Elect

Trump’s

selection for FCC Chairman—had dissented from the

FCC order the Sixth Circuit vacated and has endorsed

the Sixth Circuit’s ruling “striking down the[ ] unlawful Title II regulations.”4 It therefore appears

unlikely that the United States will seek (or support)

this Court’s review of that decision. The “convulsive

change[s]” of the past decade, with each new “administration rescind[ing] the [prior administration’s] rule

4 See Press Release, FCC, Off. of Comm’r Brendan Carr, Carr

Welcomes Court Order Invalidating President Biden’s Plan to

Expand Government Control of the Internet Through Title II

Regulations (Jan. 2, 2025), https://docs.fcc.gov/public/attachments/

DOC-408580A1.pdf.

4

and replac[ing] it with another,” are now at an end.

Loper Bright Enters. v. Raimondo, 603 U.S. 369, 438

(2024) (Gorsuch, J., concurring).

3. The Sixth Circuit’s decision is an “intervening

circumstance[ ] of a substantial . . . effect” that warrants rehearing. Sup. Ct. R. 44.2. To start, the decision resolves the status of broadband under federal

law. It is a Title I service, just as it was when the

Second Circuit ruled. The vehicle problems New York

raised in its opposition (at 14-16) as its first ground for

opposing certiorari no longer exist.

The Sixth Circuit’s decision also crystalizes the

Second Circuit’s decision as a conflicting outlier. As

noted above, the Sixth Circuit found that it would be

“strange” if, as the FCC contended, the same Congress

that wanted to keep broadband “unfettered by Federal

or State regulation” also “shackl[ed]” broadband to

“onerous Title II regulation.” MCP No. 185, 2025 WL

16388, at *7. Yet the Second Circuit concluded that

the Communications Act does not preempt States

from regulating broadband prices because broadband

is an information service. See App. 30a-31a, 33a-34a.

The court below thus thought that the same Congress

that prohibited the FCC from regulating Title I information services like public utilities, and wanted them

“unfettered by Federal or State regulation,” actually

left each State free to choose whether to shackle

broadband providers with onerous common-carrier

regulations, including rate regulation. That is the same

“strange” state of affairs the Sixth Circuit correctly

read the Communications Act to prohibit.5

5 During the first Trump administration, the United States

sought to enjoin California’s law regulating broadband providers

as common carriers on federal preemption grounds. See Mot. for

Prelim. Inj., United States v. California, No. 18-cv-2660, ECF No.

5

The Sixth Circuit’s decision also escalates the

importance of the issues this case presents. New

York’s promise not to enforce its rate regulation law

expires on January 14, 2025.6 The following day will

be the first day that any government—federal, state,

or local—has ever regulated retail broadband rates.7

While New York’s law will be the first, it likely will

not be the last. Pro-regulation advocates have already

announced their intent “to look to states and local

governments to help lead on broadband”8 and “to hold

the line.”9

2 (E.D. Cal. Sept. 30, 2018); Renewed Mot. for Prelim. Inj., United

States v. California, No. 18-cv-2660, ECF No. 21 (E.D. Cal.

Aug. 5, 2020). The United States dismissed its complaint following the 2020 election. See Notice of Voluntary Dismissal, United

States v. California, No. 18-cv-2660, ECF No. 44 (E.D. Cal. Feb.

8, 2021).

6 After petitioners filed an emergency application for a stay

pending this Court’s consideration of their certiorari petition,

New York largely mooted that application by agreeing not to

enforce its rate-regulation law until 30 days after this Court

acted on that petition. See Jt. Ltr. from Counsel for Pet’rs and

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

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

7

There is a serious risk that, once New York’s does so,

some providers will cease offering broadband service in New York

rather than sell at a loss.

8 Shiva Stella, Sixth Circuit Ruling on FCC Authority Threat-

ens Consumer Protections and Open Internet, Public Knowledge

(Jan. 2, 2025) (statement of Public Knowledge Legal Director),

https://publicknowledge.org/sixth-circuit-ruling-on-fcc-authoritythreatens-consumer-protections-and-open-internet/.

9 Craig Aaron, How Big Companies and the Courts Killed

Net Neutrality, Common Dreams (Jan. 3, 2025) (statement of

Craig Aaron, President & Co-CEO, Free Press), https://www.

commondreams.org/opinion/fcc-net-neutrality.

6

Nor does the Second Circuit’s decision end with

broadband service. As the Sixth Circuit noted,

“[e]veryone agrees” that companies like “Netflix,

Amazon, Facebook, and Google” “offer[ ] an information service.” MCP No. 185, 2025 WL 16388, at *6.

Under the Second Circuit’s expansive holding, the

Communications Act also would not preempt state

rate regulation of the many other information services

beyond broadband—like streaming video and music,

cloud storage, email and messaging, and online video

conferencing—that broadband’s capabilities enable

consumers and businesses to access.

*

*

*

The Sixth Circuit’s recent decision obviates New

York’s primary basis for opposing certiorari, establishes the Second Circuit’s decision as a conflicting

outlier that relies on a “strange” reading of the

Communications Act, and increases the possibility of

harmful state-by-state rate regulation of broadband

and other information services. This Court should

grant the petition for rehearing and grant the petition

for a writ of certiorari.

CONCLUSION

The petition for rehearing should be granted.

7

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

January 10, 2025

Counsel for Petitioners

New York State Telecommunications Association, Inc., CTIA –

The Wireless Association,

NTCA – The Rural Broadband

Association, and USTelecom –

The Broadband Association

CERTIFICATE OF COUNSEL

Pursuant to this Court’s Rule 44.2, I, Scott H.

Angstreich, counsel for petitioners, hereby certify that

the petition for rehearing is restricted to the grounds

specified in Rule 44.2. I further certify that the petition for rehearing is presented in good faith and not

for delay.

Scott H. Angstreich

Counsel of Record for Petitioners

January 10, 2025