Emergency Application — New York State Telecommunications Association, Inc., et al., Applicants v. Letitia A. James, Attorney General of New York

Supreme Court briefAug 2, 2024

Ask Donna

What actually matters in this document.

Text

No. 24A_____

___________

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,

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

Respondent.

___________

APPLICATION FOR AN EMERGENCY STAY OF THE JUDGMENT OF THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PENDING DISPOSITION 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

August 2, 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

PARTIES TO THE PROCEEDINGS BELOW

Applicants 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, were the plaintiffs in the district court and the appellees in the

court of appeals.

Respondent Letitia A. James, in her official capacity as Attorney General of

New York, was the defendant in the district court and the appellant in the court of

appeals.

RULE 29.6 STATEMENTS

Pursuant to this Court’s Rule 29.6, applicants 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, state the

following:

ACA Connects – America’s Communications Association. ACA

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

it has no parent corporation, and no persons, associations of persons, firms,

partnerships, limited liability companies, joint ventures, corporations, or any

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

CTIA – The Wireless Association. CTIA – The Wireless Association

(“CTIA”) states that it has no parent corporation, and no persons, associations

of persons, firms, partnerships, limited liability companies, joint ventures,

corporations, or any similar entities have a 10 percent or greater ownership

interest in CTIA.

New York State Telecommunications Association, Inc. New York

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

corporation, and no persons, associations of persons, firms, partnerships, limited

liability companies, joint ventures, corporations, or any similar entities have a

10 percent or greater ownership interest in NYSTA.

NTCA – The Rural Broadband Association. National Telecommunications

Cooperative Association d/b/a NTCA – The Rural Broadband Association (“NTCA”)

states that it has no parent corporation, and no persons, associations of persons,

firms, partnerships, limited liability companies, joint ventures, corporations, or

any similar entities have a 10 percent or greater ownership interest in NTCA.

Satellite Broadcasting and Communications Association. Satellite

Broadcasting and Communications Association discloses that no publicly held

corporation owns 10 percent or more of its stock.

USTelecom – The Broadband Association. USTelecom – The Broadband

Association (“USTelecom”) states that it has no parent corporation, and no persons,

associations of persons, firms, partnerships, limited liability companies, joint ventures,

corporations, or any similar entities have a 10 percent or greater ownership interest

in USTelecom.

iii

RELATED CASES

New York State Telecomms. Ass’n, Inc., et al. v. James, 544 F. Supp. 3d 269

(E.D.N.Y. June 11, 2021) (No. 2:21-cv-2389 (DRH) (AKT))

New York State Telecomms. Ass’n, Inc., et al. v. James, No. 2:21-cv-2389 (DRH)

(AKT), ECF No. 26 (E.D.N.Y. June 11, 2021) (preliminary injunction order)

New York State Telecomms. Ass’n, Inc., et al. v. James, No. 2:21-cv-2389 (DRH)

(AKT), ECF No. 34 (E.D.N.Y. Aug. 10, 2021) (district court’s amended judgment)

New York State Telecomms. Ass’n, Inc., et al. v. James, 2021 WL 4472666

(2d Cir. Aug. 25, 2021) (No. 21-1603) (withdrawing initial appeal)

New York State Telecomms. Ass’n, Inc., et al. v. James, 101 F.4th 135

(2d Cir. Apr. 26, 2024) (No. 21-1975)

TABLE OF CONTENTS

Page

PARTIES TO THE PROCEEDINGS ............................................................................. i

RULE 29.6 STATEMENTS ........................................................................................... ii

RELATED CASES ........................................................................................................ iv

TABLE OF AUTHORITIES ....................................................................................... viii

BACKGROUND ............................................................................................................. 4

The Communications Act and FCC Decisions Regarding

Broadband Regulation ............................................................................. 4

II.

District Court Proceedings ....................................................................... 6

III.

Second Circuit Proceedings ...................................................................... 7

IV.

New York’s Temporary Agreement Not To Enforce the

ABA and the FCC’s Stayed 2024 Order .................................................. 9

ARGUMENT ................................................................................................................ 11

THIS COURT IS LIKELY TO GRANT THE CERTIORARI

PETITION .............................................................................................. 11

II.

The Second Circuit’s Decision Conflicts with This

Court’s Precedents ....................................................................... 12

The Second Circuit Erred in Holding That

the Communications Act’s Preempted Field

Excludes Interstate Information Services......................... 12

The ABA Conflicts with the Communications

Act ...................................................................................... 16

This Case Presents Important Questions of Federal

Law with Profound Implications for the Future of

Broadband and Other Interstate Information

Services ........................................................................................ 18

APPLICANTS ARE LIKELY TO SUCCEED ON THE

MERITS .................................................................................................. 20

III.

IV.

APPLICANTS’ MEMBERS FACE IRREPARABLE

HARMS, AND THE BALANCE OF THE EQUITIES

FAVORS A STAY ................................................................................... 21

The ABA Will Subject Applicants’ Members to

Immediate and Irreparable Harm .............................................. 21

The Equities and the Public Interest Favor a Stay ................... 25

ALTERNATIVELY, THIS COURT SHOULD GRANT AN

INJUNCTION BARRING THE NEW YORK ATTORNEY

GENERAL FROM ENFORCING THE ABA PENDING

DISPOSITION OF APPLICANTS’ CERTIORARI

PETITION .............................................................................................. 28

CONCLUSION............................................................................................................. 29

APPENDIX:

Memorandum and Order of the United States District Court for the

Eastern District of New York, New York State Telecomms. Ass’n, Inc.,

et al. v. James, 544 F. Supp. 3d 269 (June 11, 2021) ............................................. Ex. 1

Preliminary Injunction Order of the United States District Court for

the Eastern District of New York, New York State Telecomms. Ass’n,

Inc., et al. v. James, No. 2:21-cv-2389 (DRH) (AKT), ECF No. 26

(June 11, 2021) ......................................................................................................... Ex. 2

Amended Judgment of the United States District Court for the Eastern

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

James, No. 2:21-cv-2389 (DRH) (AKT), ECF No. 34 (Aug. 10, 2021) .................... Ex. 3

Stipulated Final Judgment of the United States District Court for the

Eastern District of New York, New York State Telecomms. Ass’n, Inc.,

et al. v. James, No. 2:21-cv-2389 (DRH) (AKT), ECF No. 31 (July 28,

2021) ......................................................................................................................... Ex. 4

Stipulation Regarding Agreement Not To Enforce N.Y. Gen. Bus. Law

§ 399-zzzzz, New York State Telecomms. Ass’n, Inc., et al. v. James,

No. 2:21-cv-2389-GRB-AKT (June 11, 2024) .......................................................... Ex. 5

Order of the United States Court of Appeals for the Sixth Circuit,

In re: MCP No. 185 Open Internet Rule (FCC 24-52), No. 24-7000,

Dkt. No. 71-2 (Aug. 1, 2024) (per curiam) .............................................................. Ex. 6

Opinion of the United States Court of Appeals for the Second Circuit,

New York State Telecomms. Ass’n, Inc., et al. v. James, 101 F.4th 135

(Apr. 26, 2024).......................................................................................................... Ex. 7

Order of the United States Court of Appeals for the Sixth Circuit,

In re: MCP No. 185 Open Internet Rule (FCC 24-52), No. 24-7000,

Dkt. No. 67-2 (July 12, 2024)................................................................................... Ex. 8

Declarations in Support of Plaintiffs’ Motion for Preliminary Injunction,

New York State Telecomms. Ass’n, Inc., et al. v. James, No. 2:21-cv2389 (DRH) (AKT), ECF Nos. 16-1–16-6 (E.D.N.Y. May 6, 2021) ......................... Ex. 9

Declaration of Wade Northrup in Support of Application for an

Emergency Stay of the Judgment of the United States Court of

Appeals for the Second Circuit Pending Disposition of Petition

for a Writ of Certiorari (dated July 31, 2024) ....................................................... Ex. 10

Declaration of Glen Faulkner in Support of Application for an Emergency

Stay of the Judgment of the United States Court of Appeals for the

Second Circuit Pending Disposition of Petition for a Writ of Certiorari

(dated Aug. 1, 2024) ............................................................................................... Ex. 11

Declaration of Jason Miller in Support of Application for an Emergency

Stay of the Judgment of the United States Court of Appeals for the

Second Circuit Pending Disposition of Petition for a Writ of Certiorari

(dated July 18, 2024) ............................................................................................. Ex. 12

Declaration of Matthew Kramer Coakley in Support of Application for

an Emergency Stay of the Judgment of the United States Court of

Appeals for the Second Circuit Pending Disposition of Petition for a

Writ of Certiorari (dated Aug. 2, 2024) ................................................................. Ex. 13

Declaration of Angela Wilkin in Support of Application for an Emergency

Stay of the Judgment of the United States Court of Appeals for the Second

Circuit Pending Disposition of Petition for a Writ of Certiorari (dated July

29, 2024) ................................................................................................................. Ex. 14

vii

TABLE OF AUTHORITIES

Page

CASES

AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366 (1999).................................................. 18

Bank One v. Guttau, 190 F.3d 844 (8th Cir. 1999) ..................................................... 25

Barnes v. E-Sys., Inc. Grp. Hosp. Med. & Surgical Ins. Plan,

501 U.S. 1301 (1991) ........................................................................................... 3

Hollingsworth v. Perry, 558 U.S. 183 (2010) .............................................................. 21

Hughes v. Talen Energy Mktg., LLC, 578 U.S. 150 (2016)......................................... 14

Ivy Broad. Co. v. AT&T Co., 391 F.2d 486 (2d Cir. 1968) .......................................... 14

Jacobson & Co. v. Armstrong Cork Co., 548 F.2d 438 (2d Cir. 1977) ........................ 24

Labrador v. Poe ex rel. Poe, 144 S. Ct. 921 (2024) ...................................................... 28

Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355 (1986) ....................... 4, 12, 14-15

MCP No. 185 Open Internet Rule (FCC 24-52), In re, No. 24-7000

(6th Cir.):

Dkt. No. 67-2 (July 12, 2024) ............................................................................ 10

Dkt. No. 71-2 (Aug. 1, 2024) ................................................................. 3-4, 10-12

Merrill v. Milligan, 142 S. Ct. 879 (2022) ............................................................. 11, 20

Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) ....................................... 21

Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir. 2019) ......................................... 5-6, 16-17

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

545 U.S. 967 (2005) ....................................................................................... 4, 16

NCAA v. Board of Regents of Univ. of Oklahoma, 463 U.S. 1311 (1983) .................... 3

Nemer Jeep-Eagle, Inc. v. Jeep-Eagle Sales Corp., 992 F.2d 430

(2d Cir. 1993) ..................................................................................................... 22

New York Progress & Prot. PAC v. Walsh, 733 F.3d 483 (2d Cir. 2013) ................... 25

Nken v. Holder, 556 U.S. 418 (2009) ........................................................................... 21

viii

Northwest Cent. Pipeline Corp. v. State Corp. Comm’n, 489 U.S. 493

(1989) ................................................................................................................. 17

Odebrecht Constr., Inc. v. Secretary, Florida Dep’t of Transp.,

715 F.3d 1268 (11th Cir. 2013) ......................................................................... 23

Postal Tel.-Cable Co. v. Warren-Godwin Lumber Co., 251 U.S. 27

(1919) ................................................................................................................. 14

Roche, In re, 448 U.S. 1312 (1980) .............................................................................. 20

Rogers Grp., Inc. v. City of Fayetteville, 629 F.3d 784 (8th Cir. 2010) ...................... 24

Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020)........................... 4, 28

Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988) ...................................... 14-15

Smith v. City of Jackson, 544 U.S. 228 (2005)............................................................ 15

Spectrum Northeast, LLC v. Frey, 22 F.4th 287 (1st Cir. 2022),

cert. denied, 143 S. Ct. 562 (2023) .................................................................... 15

Tandon v. Newsom, 593 U.S. 61 (2021) ...................................................................... 28

Transcontinental Gas Pipe Line Corp. v. State Oil & Gas Bd. of

Mississippi, 474 U.S. 409 (1986) ...................................................................... 17

United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) ....................................... 25

Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) ....................................................... 4, 16

Western Union Tel. Co. v. Boegli, 251 U.S. 315 (1920) ............................................... 14

ADMINISTRATIVE DECISIONS

Declaratory Ruling, Order, Report and Order, and Order on Reconsideration,

Safeguarding and Securing the Open Internet, WC Docket Nos. 23-230

& 17-108, FCC 24-52 (rel. May 7, 2024), https://bit.ly/4aexF00 ....... 9-11, 18-19

Declaratory Ruling, Report and Order, and Order, Restoring Internet

Freedom, 33 FCC Rcd 311 (2018) ........................................................ 5-6, 16, 18

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

Protecting and Promoting the Open Internet, 30 FCC Rcd 5601

(2015) ................................................................................................................... 5

CONSTITUTION, STATUTES, AND RULES

U.S. Const. amend. XI ............................................................................................ 22-23

All Writs Act, 28 U.S.C. § 1651 ............................................................................... 1, 28

28 U.S.C. § 1651(a)........................................................................................ 1, 28

Communications Act of 1934, 47 U.S.C. § 151 et seq. .................... 1-4, 8, 11-16, 19-20

47 U.S.C. § 152 ............................................................................................. 13-14

47 U.S.C. § 152(a).............................................................................................. 13

47 U.S.C. § 152(b).............................................................................................. 13

47 U.S.C. § 153(24)............................................................................................ 19

47 U.S.C. § 153(51)............................................................................................ 16

47 U.S.C. § 160 .......................................................................................... 5, 9, 13

47 U.S.C. §§ 201-203 ....................................................................................... 5, 8

47 U.S.C. § 201(b).............................................................................................. 13

47 U.S.C. §§ 203-205 ......................................................................................... 13

47 U.S.C. § 1702 ................................................................................................ 25

47 U.S.C. § 1702(h)(4)(B) .................................................................................. 25

47 U.S.C. § 1702(h)(5)(D) .................................................................................. 25

Federal Power Act, 16 U.S.C. § 791a et seq. ......................................................... 14-15

Mann-Elkins Act, ch. 309, 36 Stat. 539 (1910) ..................................................... 14, 20

Natural Gas Act, 15 U.S.C. § 717 et seq. ......................................................... 14-15, 17

Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 ............ 13, 18, 21

28 U.S.C. § 2112 ........................................................................................................... 10

Affordable Broadband Act, N.Y. Gen. Bus. Law § 399-zzzzz ................ 6-10, 12, 15-16,

18, 20-25, 28-29

§ 399-zzzzz(1) ................................................................................................ 6, 12

§ 399-zzzzz(2)-(4) ................................................................................................. 6

§ 399-zzzzz(5) .................................................................................................... 23

§ 399-zzzzz(7) .................................................................................................... 24

§ 399-zzzzz(10) .............................................................................................. 6, 28

Sup. Ct. R. 23 ................................................................................................................. 1

OTHER MATERIALS

Governor Hochul Unveils $50 Million ConnectALL Digital Equity

Plan to Close New York’s Digital Divide (Apr. 5, 2024),

https://on.ny.gov/4aWF0By ............................................................................... 26

New York Initial Proposal, Volume II: Broadband Equity, Access,

and Deployment (BEAD) Program (Dec. 2023),

https://on.ny.gov/46sHw20 ................................................................................ 26

New York State Digital Equity Plan (June 2024), https://on.ny.gov/3RkZ7CG ........ 26

Press Release, FCC, FCC Brings Affordable Connectivity Program to a

Close (May 31, 2024), https://docs.fcc.gov/public/attachments/

DOC-402930A1.pdf ........................................................................................... 26

State Level Data, appended to Public Notice, The Office of Economics

and Analytics and the Wireline Competition Bureau Announce

Publication of Affordable Connectivity Program Transparency

Data Collection Summary, WC Docket No. 21-450, DA 24-504

(rel. May 30, 2024), https://docs.fcc.gov/public/attachments/DOC402907A1.pdf..................................................................................................... 27

USTelecom, 2023 Broadband Pricing Index (Oct. 2023),

https://bit.ly/3Kz36YC ................................................................................. 19, 27

White House Fact Sheet: President Biden Highlights Commitments

to Customers by Internet Service Providers to Offer Affordable

High-Speed Internet Plans, Calls on Congress to Restore

Funding for Affordable Connectivity Program (May 31, 2024),

https://bit.ly/4cbXi2W........................................................................................ 27

APPLICATION FOR AN EMERGENCY STAY OF THE JUDGMENT OF THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PENDING DISPOSITION 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:

Pursuant to Rule 23 of the Rules of this Court and the All Writs Act,

28 U.S.C. § 1651, applicants respectfully apply for a stay of the judgment of the

U.S. Court of Appeals for the Second Circuit pending resolution of applicants’

forthcoming petition for a writ of certiorari.1 That petition will seek review of a

divided panel decision that presents fundamental questions about whether the

Communications Act of 1934 preempts States from regulating rates for broadband

internet access service and other interstate information services. In the alternative,

applicants request an injunction preventing the New York Attorney General from

enforcing New York’s broadband rate regulation law, which the State has never

enforced, until this Court acts. Applicants request that the Court rule on this

application by August 15, 2024 — the day before New York may begin regulating

broadband rates — and that the Court issue an administrative stay, if necessary

to provide the Court sufficient time to rule on this application.

Applicants are trade associations with members that provide broadband

internet access service (“broadband” or “BIAS”) to customers in New York. They

seek review of the Second Circuit’s ruling dissolving a district court injunction and

1 While that petition is due on September 23, 2024, see Docket No. 24A40

(granting extension), applicants intend to file that petition no later than August 12,

2024.

allowing New York to set a maximum price for consumer broadband, an interstate

information service under federal law. The Second Circuit’s decision that the

Communications Act does not preempt state rate regulation of broadband because it

is an interstate information service would open the door to a wave of unprecedented

state rate regulation. Streaming video and music, cloud storage, email and

messaging, and video-conferencing services are all also interstate information

services under the Communications Act. If federal law does not preempt state

rate regulation of broadband, it also does not preempt state rate regulation of

those other services.

This Court should grant a limited-duration stay pending resolution of

applicants’ forthcoming certiorari petition, to preserve the status quo that has

prevailed since 2021 — first through a preliminary injunction, see New York State

Telecomms. Ass’n, Inc. v. James, 544 F. Supp. 3d 269 (E.D.N.Y. 2021) (“NYSTA I ”)

(attached hereto as Ex. 1); see also Exs. 2 (preliminary injunction order), 3 (amended

judgment), then through New York’s agreement to the entry of an appealable

permanent injunction, see Ex. 4, and then through the New York Attorney General’s

temporary agreement not to enforce the New York rate-regulation law despite the

Second Circuit’s ruling, see Ex. 5.

That temporary agreement expires on August 15, 2024. See id. Absent

this Court’s intervention, on August 16, 2024, New York would become the first

government — federal, state, or local — to regulate the retail rates that broadband

providers (including applicants’ members) may charge.

This Court is likely to grant certiorari to review the Second Circuit’s decision

and to reverse it. The Second Circuit held that Title I of the Communications Act —

which still governs broadband because the Sixth Circuit yesterday unanimously

stayed the Federal Communications Commission (“FCC”) order reclassifying

broadband as a Title II service2 — does not preempt New York from regulating

broadband rates. See New York State Telecomms. Ass’n, Inc. v. James, 101 F.4th

135 (2d Cir. 2024) (“NYSTA II ”) (attached hereto as Ex. 7). As the district court

found in 2021 and New York did not challenge on appeal, enforcing New York’s $15

broadband rate regulation would cause applicants’ members immediate, irreparable

harm. Applicants’ members’ additional declarations confirm that the irreparable

harms would occur today. In contrast, continuing to preserve the status quo would

not harm the public interest.

The Court should therefore stay the Second Circuit’s judgment, temporarily

reinstating the district court’s preliminary injunction while this Court reviews

applicants’ forthcoming certiorari petition. See, e.g., Barnes v. E-Sys., Inc. Grp.

Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1302 (1991) (Scalia, J., in chambers)

(staying Fifth Circuit judgments regarding preemption pending review of petition

for certiorari); NCAA v. Board of Regents of Univ. of Oklahoma, 463 U.S. 1311,

1311 (1983) (White, J., in chambers) (granting stay of Tenth Circuit’s judgments

“pending the timely filing and disposition of a petition for writ of certiorari”). In

the alternative, this Court should issue an injunction pending disposition of the

2 See Order, In re: MCP No. 185 Open Internet Rule (FCC 24-52), No. 24-7000,

Dkt. No. 71-2 (6th Cir. Aug. 1, 2024) (per curiam) (attached hereto as Ex. 6).

certiorari petition that would have the same effect. See Roman Cath. Diocese of

Brooklyn v. Cuomo, 592 U.S. 14, 15 (2020) (per curiam) (granting injunction of

New York law pending review of petition for certiorari).

BACKGROUND

The Communications Act and FCC Decisions Regarding Broadband

Regulation

In the Communications Act, Congress “divide[d] the world . . . into two

hemispheres — one comprised of interstate service, over which the FCC would have

plenary authority, and the other made up of intrastate service.” Louisiana Pub.

Serv. Comm’n v. FCC, 476 U.S. 355, 360 (1986) (emphasis added). While, “in

practice,” “actions taken by federal and state regulators within their respective

domains” can “affect” the “other ‘hemisphere,’ ” id. (emphasis added), federal law

preempts state laws regulating intrastate services where it is “not possible” for

separate intrastate and interstate regimes to co-exist, id. at 375-76 & n.4 (emphasis

omitted).

Historically, the FCC concluded that broadband is an interstate information

service subject to Title I of the Communications Act,3 making broadband

“statutorily exempt from common carrier treatment” under Title II of that Act

(including ex ante rate regulation). Verizon v. FCC, 740 F.3d 623, 654 (D.C.

Cir. 2014); see also Ex. 6, at 3-4 (recounting this history).

3 See National Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

967, 977-78 (2005) (upholding that classification).

In 2015, however, the FCC for the first time classified broadband as a

telecommunications service subject to common-carrier regulation under Title II.4

But even though Title II includes rate regulation and tariff filing among its

provisions, see 47 U.S.C. §§ 201-203, the FCC used its statutory forbearance

authority, see id. § 160, to prevent those “ex ante rate regulation” provisions from

applying, finding rate regulation not in the public interest. 2015 Order ¶¶ 441,

443, 449.

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

an interstate information service immune from all Title II regulation, including rate

regulation.5 The FCC noted that the threat of future rate regulation under the 2015

Order — notwithstanding forbearance — risked undermining “investments in

broadband infrastructure,” contrary to federal policy. 2018 Order ¶ 101. To protect

its decision from any possibility of state-level undermining, the FCC adopted a

“Preemption Directive,” which preempted all state regulation of broadband: even

purely intrastate regulations that did not conflict with the federal regime. See id.

¶¶ 194-204.

The D.C. Circuit upheld the FCC’s classification of broadband as a Title I

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

2019) (per curiam). However, a 2-1 majority vacated the Preemption Directive,

4 See Report and Order on Remand, Declaratory Ruling, and Order, Protecting

and Promoting the Open Internet, 30 FCC Rcd 5601, ¶ 47 (2015) (“2015 Order”).

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

Freedom, 33 FCC Rcd 311, ¶¶ 2, 18, 65 (2018) (“2018 Order”).

holding that, under Title I, the FCC lacked statutory authority “to wipe out a

broader array of state and local laws than traditional conflict preemption principles

would allow.” Id. at 74. But the majority denigrated as a “straw man” and

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

of the 50 states is free to impose” the “heavy hand of Title II for the Internet,” id. at

95 (Williams, J., concurring in part and dissenting in part). Instead, the Mozilla

majority clarified that, where “a state practice actually undermines” the Title I

regime to which the 2018 Order returned broadband, “conflict preemption” would

apply. Id. at 85.

II.

District Court Proceedings

In 2021, New York enacted the so-called “Affordable Broadband Act” (“ABA”),

N.Y. Gen. Bus. Law § 399-zzzzz, a first-of-its-kind broadband rate regulation.

The ABA requires all broadband providers to sell broadband (other than mobile

broadband) to qualifying low-income households at a cost to consumers of no more

than $15 per month (for download speeds of at least 25 Mbps) or no more than

$20 per month (for download speeds of at least 200 Mbps). See id. § 399-zzzzz(2)(4). The law defines the “broadband service” it regulates as “a mass-market retail

service that provides the capability to transmit data to and receive data from all

or substantially all internet endpoints,” id. § 399-zzzzz(1) — mirroring the FCC’s

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

The ABA authorizes the Attorney General to enforce it, including by seeking a

$1,000-per-violation civil penalty. See N.Y. Gen. Bus. Law § 399-zzzzz(10).

Applicants filed a complaint and sought a preliminary and permanent

injunction barring the ABA’s enforcement. The district court issued an order

preliminarily enjoining the ABA before it took effect. The court found the rate

regulation would irreparably harm applicants’ members, see NYSTA I, 544 F. Supp.

3d at 276-79, and that applicants had established a likelihood of success on the

merits, under both field and conflict preemption, see id. at 279-88. The court also

found it “clear” that “the ABA is rate regulation” of an interstate service, id. at 282,

rejecting New York’s arguments that the ABA is an “intrastate affordable-pricing

scheme,” id. at 284.

New York soon thereafter stipulated to a permanent injunction — which the

district court entered — and then appealed the final judgment while dismissing its

earlier appeal of the preliminary injunction. See Ex. 4.

III.

Second Circuit Proceedings

On April 26, 2024, a divided panel of the Second Circuit reversed the district

court in a 2-1 decision that would vacate the permanent injunction.

The Second Circuit majority (Judges Nathan and Merriam) first found the

court had jurisdiction to consider New York’s appeal. See NYSTA II, 101 F.4th at

146-47.6 Turning to the merits, the majority agreed with the district court that,

“[a]s a threshold matter,” the ABA regulates the rates “of interstate

6 Applicants agreed to the Attorney General’s proposal to convert the

preliminary injunction into a stipulated final judgment imposing a permanent

injunction. Applicants understood that the Attorney General was not relinquishing

her right to appeal that permanent injunction.

communications services.” Id. at 148 n.10. The majority rejected New York’s

argument that the ABA was a “purely intrastate affordable-pricing scheme.” Id.

Yet the majority concluded that Congress had not occupied the field with

respect to interstate information services. See id. at 147-54. The Second Circuit

majority recognized that the Communications Act’s “comprehensive” regulation

of common carriers in Title II is field preemptive. Id. at 153 (citing 47 U.S.C.

§§ 201-203). However, the majority wrongly concluded that the absence of similar

provisions in Title I for interstate information services left the field open for States

to regulate the rates of such services. See id. at 152-53.7

The majority also found that conflict preemption did not bar enforcement of

the ABA. The majority noted that, when broadband is a Title I service, it is outside

the FCC’s authority over Title II services, including the authority to impose or

forbear from rate regulation. See id. at 155. It then concluded that, because Title I

does not give the FCC rate-setting authority over interstate information services,

any state rate setting for such services could not conflict with federal law. See id.

at 156-57.

Judge Sullivan dissented as to both appellate jurisdiction, see id. at 158-66,

and the merits, see id. at 166-68. As to the latter, Judge Sullivan would have found

the ABA field preempted by the Communications Act, which “grants the FCC

7 The majority was incorrect to state that applicants “abandoned” the breadth

of their field preemption argument on appeal. NYSTA I, 101 F.4th at 148. Rather,

applicants argued on appeal that, because rate regulation is at the core of the

preempted field, the Second Circuit did not need to define the outer limits of that

field, such as whether general state laws applicable to all contracts can apply to

contracts for interstate information services.

authority over ‘all interstate’ communication services — save for a limited set of

state-law prohibitions — while leaving to the states the power to regulate intrastate

communications.” Id. at 167. Judge Sullivan also would have found the ABA

conflict preempted, rejecting New York’s suggestion “that because the FCC

currently lacks power to regulate broadband rates, it cannot prevent states from

regulating those rates either.” Id. at 168.

IV.

New York’s Temporary Agreement Not To Enforce the ABA and the

FCC’s Stayed 2024 Order

Notwithstanding the Second Circuit’s decision, the New York Attorney

General entered into an agreement with applicants to preserve the status quo by

temporarily not enforcing the ABA. See Ex. 5.8 New York did so because, shortly

after the Second Circuit ruled, the FCC released its 2024 Order,9 in which the

FCC reverted to its 2015 claim to have authority to regulate broadband as a Title II

telecommunications service. See 2024 Order ¶¶ 2, 188-189. In the 2024 Order,

however, the FCC adhered to its long-standing conclusion that ex ante rate

regulation of broadband is not in the public interest. See id. ¶ 386. The FCC relied

on 47 U.S.C. § 160 to forbear from “all Title II provisions that could be used to

impose ex ante or ex post rate regulation on [broadband] providers.” Id. ¶ 389.

8 In exchange for that agreement, applicants did not seek further relief from

the Second Circuit. See Ex. 5, at 3. But applicants expressly reserved their right

to petition for certiorari and for “relief pending resolution of such a petition for

certiorari from the United States Supreme Court.” Id.

9 See 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.

Several trade associations with internet service provider members, including

some of the applicants here, filed petitions for review of the 2024 Order and also

moved for a stay pending resolution of those petitions.10 On August 1, 2024, the

Sixth Circuit granted a motion to stay the 2024 Order pending the resolution of

challenges to that order. See Ex. 6. In granting the stay, the Sixth Circuit found

that the petitioners were likely to succeed on the merits of their challenge to the

2024 Order — that is, that broadband is likely to remain a Title I information

service permanently. See id. at 5-7; see also id. at 9-13 (Sutton, C.J., concurring)

(identifying an “additional reason” why the petitioners are likely to succeed on the

merits). It also found that the members would suffer irreparable harm from being

subjected to a common-carrier regime while the litigation was pending. See id. at 7.

The Sixth Circuit set an accelerated briefing schedule and will hear oral argument

on review of the 2024 Order during the week of October 28, 2024 sitting. See id. at 9.

New York’s agreement not to enforce the ABA expires 14 days after entry

of the stay pending appeal. See Ex. 5, at 3. Accordingly, absent this Court’s

intervention, the New York Attorney General may begin enforcing the ABA against

applicants’ members on August 16, 2024.

10 Pursuant to the process in 28 U.S.C. § 2112, those petitions for review were

consolidated in the United States Court of Appeals for the Sixth Circuit. In re: MCP

No. 185 Open Internet Rule (FCC 24-52), No. 24-7000 (6th Cir.). On July 12, 2024,

the Sixth Circuit administratively stayed the 2024 Order. See Order, In re: MCP No.

185 Open Internet Rule (FCC 24-52), No. 24-7000 (July 12, 2024) (attached hereto as

Ex. 8).

ARGUMENT

An applicant for a stay of judgment pending a petition for a writ of certiorari

must establish (1) “a reasonable probability that this Court would eventually grant

review,” (2) “a fair prospect that the Court would reverse,” and (3) “that the applicant

would likely suffer irreparable harm absent the stay” and “the equities” otherwise

support relief. Merrill v. Milligan, 142 S. Ct. 879, 880 (2022) (Kavanaugh, J.,

concurring). Applicants satisfy each of those requirements. The Court should grant

interim relief to preserve the status quo — just as the Sixth Circuit did in staying

the 2024 Order, see Ex. 6 — until this Court resolves applicants’ certiorari petition.

THIS COURT IS LIKELY TO GRANT THE CERTIORARI PETITION

Certiorari is warranted because whether States can set prices for interstate

information services — including, but not limited to, broadband — is a question of

exceptional national importance. This Court will likely grant certiorari because the

Second Circuit’s 2-1 decision that New York has such rate-setting authority threatens

to spark a nationwide, state-by-state race to dictate the price of broadband. And

that race is unlikely to stop there. On the Second Circuit majority’s reasoning, the

Communications Act also poses no barrier to state rate setting for ad-supported and

paid internet services including video and music streaming and cloud storage, as

well as email and messaging — all interstate information services under federal

law. See 2024 Order ¶ 131.

In light of the vast legal and practical significance of this question, there is

more than a reasonable likelihood that this Court will grant certiorari to confirm

that the federal Communications Act — not a patchwork of state laws — governs

the regulation of broadband and other interstate information services. The Sixth

Circuit has already concluded that challenges to the FCC’s recent order subjecting

broadband to common-carrier regulation are likely to succeed on the merits. See

Ex. 6, at 5-7; see also id. at 9-13 (Sutton, C.J., concurring). If the Second Circuit’s

decision were allowed to stand, States in that circuit — and in the Ninth Circuit,

which reached a similar decision — would be free to engage in the very commoncarrier regulation that the Communications Act forbids.

The Second Circuit’s Decision Conflicts with This Court’s

Precedents

The Second Circuit Erred in Holding That the Communications

Act’s Preempted Field Excludes Interstate Information Services

The Second Circuit was correct to reject, unanimously, New York’s effort to

deem the ABA the type of intrastate regulation with limited spillover into the

interstate sphere that the Communications Act permits States to enact. See

Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 375-76 & n.4 (1986). All

three judges, like the district court, found that the ABA is a direct “regulation

of interstate communications services.” NYSTA II, 101 F.4th at 148 n.10; see

id. at 166 (Sullivan, J., dissenting); NYSTA I, 544 F. Supp. 3d at 282, 284.

This conclusion was inescapable because the ABA defines broadband as a service

that “provides the capability to transmit data to and receive data from all or

substantially all internet endpoints,” which are located around the country

(and around the world). N.Y. Gen. Bus. Law § 399-zzzzz(1).

However, the Second Circuit majority wrongly concluded that the

Communications Act is field preemptive only as to Title II services. See NYSTA II,

101 F.4th at 150-51. For Title II services, Congress dictated a public-utility rate

regime, with carriers filing rates in tariffs and the FCC authorized to assess whether

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

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

of 1996, Congress also directed the FCC to exempt Title II services from those

statutory provisions when it is not in the public interest to enforce them. See

id. § 160.

Title I lacks the same public-utility rate regime. But that is not because

Congress wanted each State to be free to decide whether to regulate interstate

information services as public utilities. Instead, as Judge Sullivan explained, it is

because the Communications Act gives the FCC “exclusive authority over interstate

communications” and has left to the States only “the power to regulate intrastate

communications.” NYSTA II, 101 F.4th at 167 (Sullivan, J., dissenting). The fact

that Title I does not authorize rate regulation of interstate information services

means that such rate regulation is ruled out — not that States are free to regulate

in the Commission’s stead.

Congress divided the field of communications into separate interstate and

intrastate spheres in Section 152: granting the FCC exclusive jurisdiction over “all

interstate . . . communication by wire or radio,” 47 U.S.C. § 152(a), while denying

the FCC “jurisdiction with respect to . . . intrastate communication service,” id.

§ 152(b). As Judge Sullivan explained, Section 152 thus “prescribes that the FCC

has exclusive authority over interstate communications.” NYSTA II, 101 F.4th at

167 (Sullivan, J., dissenting). This Court reads Section 152 the same way, finding

that it “divide[s] the world . . . into two hemispheres — one comprised of interstate

service, over which the FCC would have plenary authority, and the other made up

of intrastate service, over which the States would retain exclusive jurisdiction.”

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

Congress copied Section 152 into the 1935 Federal Water Power Act (now

known as the Federal Power Act (“FPA”)) and the 1938 Natural Gas Act (“NGA”).

Consistent with Louisiana Public Service Commission, this Court has repeatedly

read that borrowed statutory language to be field preemptive. See, e.g., Hughes v.

Talen Energy Mktg., LLC, 578 U.S. 150, 154, 163 (2016) (finding that the FPA

“occup[ies] an entire field of regulation” and gives the relevant agency the “exclusive

authority to regulate ‘the sale of electric energy at wholesale in interstate commerce’ ”)

(citation omitted); Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300-01 (1988)

(holding that the NGA gives the relevant agency “exclusive jurisdiction over the

transportation and sale of natural gas in interstate commerce”). The language in

Section 152 — mirrored in the FPA and the NGA — is how the 1930s Congress

stated its intent to occupy the field and preclude state regulation of interstate

services.11

11 Further confirmation comes from the fact that the federal Communications

Act continues the 1910 Mann-Elkins Act, which this Court twice held to preempt

the field as to interstate telegraph service. See Postal Tel.-Cable Co. v. WarrenGodwin Lumber Co., 251 U.S. 27, 30 (1919); Western Union Tel. Co. v. Boegli, 251

U.S. 315, 316-17 (1920). Congress consolidated the Mann-Elkins Act, along with

other statutes, into the Communications Act, carrying forward the existing field

preemption. See Ivy Broad. Co. v. AT&T Co., 391 F.2d 486, 490-91 (2d Cir. 1968).

The Second Circuit majority erred when it concluded that field preemption

does not apply to Title I services. It correctly found that the ABA regulates directly

in the interstate sphere. See NYSTA II, 101 F.4th at 148 n.10. Therefore, the

majority erred in treating the ABA as though it were a non-preempted state action

regulating only within the intrastate sphere with limited effects that cross over

that boundary. See id. at 150 (citing Louisiana Pub. Serv. Comm’n, 476 U.S. at

375). The Second Circuit was also wrong to brush aside the similarities in the

Communications Act, the FPA, and the NGA. This Court already rejected the

majority’s view that the Communications Act language copied into the FPA and

the NGA is field preemptive only because this Court’s pre-FPA and NGA cases held

that the dormant Commerce Clause prevented state rate regulation of interstate

gas and electricity sales. See Schneidewind, 485 U.S. at 304-05; NYSTA II, 101

F.4th at 151. Instead, the proper conclusion from Congress’s decision to copy

the Communications Act language into the FPA and the NGA is “that Congress

intended that text to have the same meaning in [all three] statutes.” Smith v.

City of Jackson, 544 U.S. 228, 233 (2005) (plurality).12

12 The majority also incorrectly found that early instances of state regulation

of cable television rates, while cable was a Title I service, meant that Congress did

not preempt that field. As Judge Sullivan noted in dissent, this history is “scant”

and consists of one “article noting that eleven states oversaw rate regulation of

cable during the 1970s,” which is far from a “meaningful tradition.” NYSTA II,

101 F.4th at 167 n.5 (Sullivan, J., dissenting). In fact, the history of cable regulation

teaches the opposite lesson — States have lawfully regulated cable rates only where

federal law expressly authorized such regulation. See Spectrum Northeast, LLC v.

Frey, 22 F.4th 287, 294-96 (1st Cir. 2022), cert. denied, 143 S. Ct. 562 (2023).

The ABA Conflicts with the Communications Act

Telecommunications carriers may be “treated as a common carrier under

[the Communications Act] only to the extent that [they are] engaged in providing

telecommunications services.” 47 U.S.C. § 153(51) (emphasis added); see National

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 975 (2005)

(“The Act regulates telecommunications carriers, but not information-service

providers, as common carriers.”); Verizon v. FCC, 740 F.3d 623, 654 (D.C. Cir. 2014)

(same). The FCC correctly concluded in the 2018 Order that broadband is an

information service under the Communications Act, see 2018 Order ¶ 2, so it cannot

regulate broadband as a public-utility, common-carrier service. New York’s law

conflicts with Congress’s determination that interstate information services are

exempt from common-carrier regulation.

The Second Circuit majority erroneously concluded that the prohibition on

common-carrier regulation bars only the FCC from such regulation, while every

State may impose rate regulation and whatever other common-carrier rules it likes

onto broadband. See NYSTA II, 101 F.4th at 157-58. The majority thought it

necessary for broadband to be a Title II service and for the FCC to forbear from the

Communications Act’s rate regulation provisions for conflict preemption to prevent

broadband rate regulation at the state level. See id. at 154-55.13 Although Title II

13 In this way, the Second Circuit read the D.C. Circuit’s Mozilla decision

in the exact manner its authors warned against. The Mozilla majority said the

dissent was attacking a “straw man” in arguing that, if the FCC lacked authority

to expressly preempt all state broadband laws, including those that neither field

nor conflict preemption forbade, States were free to regulate broadband providers

as common carriers. Mozilla Corp. v. FCC, 940 F.3d 1, 85 (D.C. Cir. 2019) (per

classification and forbearance would be sufficient for broadband rates to remain free

from state regulation, it is not necessary.

Instead, for Congress’s decision to protect interstate information services

from common-carrier regulation to be given effect, the Act must prohibit States —

no different from the FCC — from imposing rate regulation. This Court reached

the same conclusion in analogous circumstances in Transcontinental Gas Pipe Line

Corp. v. State Oil & Gas Board of Mississippi, 474 U.S. 409 (1986). There, this

Court held that Congress’s decision to exempt certain gas sales from FERC’s publicutility regulation under the NGA preempted States from imposing public-utility

regulation on those same sales. This Court rejected the argument that Congress’s

decision “to give market forces a more significant role” for those gas sales reflected

Congress’s “inten[t] to give the States the power it had denied [the agency].” Id.

at 422. Instead, as the Court reiterated in a later case, “Congress’s intent . . . that

the supply, the demand, and the price of deregulated gas be determined by market

forces requires that the States still may not regulate purchasers so as to affect their

cost structures.” Northwest Cent. Pipeline Corp. v. State Corp. Comm’n, 489 U.S.

493, 507 n.8 (1989).

Here, too, Congress’s intent that the market — not legislators or bureaucrats

— determine the price of Title I services requires that States also not interfere with

those market forces through rate setting. This Court long ago recognized that, in

curiam). Yet the Second Circuit majority adopted that same “straw man” position

here, without acknowledging the Mozilla majority’s warning. See NYSTA II, 101

F.4th at 154-56.

the Telecommunications Act, Congress “unquestionably” took regulatory power

“away from the States.” AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 379 n.6

(1999). The Congress that denied the FCC authority to regulate providers of Title I

services as common carriers was not indifferent to whether States regulated Title I

services as common-carrier services. It rejected all such regulation of those services.

This Case Presents Important Questions of Federal Law with

Profound Implications for the Future of Broadband and Other

Interstate Information Services

Absent this Court’s intervention, the Second Circuit’s decision will lead to

more rate regulation. Other States are likely to copy New York once the Attorney

General begins enforcing the ABA and New York consumers can buy broadband

at well-below-market rates. As applicants’ members have shown and show here,

New York’s price cap will require them to sell broadband at a loss and deter them

from investing in and expanding their broadband networks. See Exs. 9-14. Rate

regulation will stifle critical investment in bringing broadband to unserved and

underserved areas.

In 2018, the FCC likewise found that the mere threat of “rate regulation”

risked chilling “investments in broadband infrastructure.” 2018 Order ¶ 101.

Smaller broadband providers in particular felt the effects of that threat, “given

their more limited resources, leading to depressed hiring in rural areas most in

need of additional resources.” Id. ¶ 104. Even the current FCC, a majority of which

supports common-carrier regulation of broadband providers, “cannot envision”

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

¶ 386. Allowing New York and other States to begin regulating those rates would

be a radical departure from a long-standing status quo, under which broadband in

the United States has flourished. Broadband prices continue to decline, even as

broadband speeds and deployment increase.14

And broadband is not the only interstate information service the Second

Circuit’s decision opens to novel rate regulation. All online services and

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

online video conferencing — meet the statutory definition of a Title I information

service. See 47 U.S.C. § 153(24); see also 2024 Order ¶ 131. The Second Circuit’s

holding means that the Communications Act also does not preempt States from

requiring video- and music-streaming services — such as Netflix or Spotify — to

offer cheaper plans to low-income households. Nor would it preempt them from

mandating rates for cloud-storage services like Dropbox, the paid versions of online

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

or security or baby cameras that stream video online like Ring or Nanit. The

decision could also pave the way for States to mandate that free, ad-supported

online services offer a paid, ad-free tier at a state-mandated maximum price.

The implications of the Second Circuit’s decision for broadband are bad

enough, but the decision reaches far beyond broadband. It threatens to open the

door to widespread state rate regulation not only of broadband internet access

services, but also of the many online services that broadband’s Title I capabilities

enable consumers and businesses to access.

14 See USTelecom, 2023 Broadband Pricing Index (Oct. 2023),

https://bit.ly/3Kz36YC.

II.

APPLICANTS ARE LIKELY TO SUCCEED ON THE MERITS

There is more than “a fair prospect that the Court would reverse” upon

granting review. Merrill, 142 S. Ct. at 880 (Kavanaugh, J., concurring). For the

same reasons that this Court is likely to grant review, it is likely to reverse. See

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

review is sought by the more discretionary avenue of writ of certiorari, . . . the

consideration of prospects for reversal dovetails, to a greater extent, with the

prediction that four Justices will vote to hear the case.”).

The Second Circuit’s decision is wrong on the law and at odds with a long line

of this Court’s precedent as to both field and conflict preemption. As the district

court explained, it is “hard to square” New York’s view — and, by extension, the

Second Circuit majority’s view — “with [this] Court’s decision in Louisiana Public

Service Commission v. FCC.” NYSTA I, 544 F. Supp. 3d at 287. And as Judge

Sullivan correctly concluded in dissent, Congress in the Communications Act

occupied the field of interstate communications services — a field that has rate

regulation at its core. See NYSTA II, 101 F.4th at 166-68 (Sullivan, J., dissenting)

(explaining that “both the Communications Act and its predecessor (the MannElkins Act) manifested ‘an intent on the part of Congress to occupy the field to the

exclusion of state law,’ including with respect to the ‘rates’ charged”). Congress did

so for all such services, not merely those that Congress concluded should be regulated

like public utilities and subject to Title II’s common-carrier regime. The ABA not

only regulates rates directly within that federal field, but also conflicts with

Congress’s express prohibition on the FCC subjecting interstate information

services to common-carrier regulation. Rate regulation is a quintessential form

of common-carrier regulation, so state rate regulation conflicts with Congress’s

prohibition. To conclude otherwise would attribute to Congress an attitude of

indifference toward state regulation that is at odds with the Telecommunications

Act, which divested States of authority they previously enjoyed.

III.

APPLICANTS’ MEMBERS FACE IRREPARABLE HARMS, AND THE

BALANCE OF THE EQUITIES FAVORS A STAY

To obtain a stay “pending the filing and disposition of a petition for a writ of

certiorari,” the applicant must also show “a likelihood that irreparable harm will

result from the denial of a stay.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010)

(per curiam). And the final stay factors call “for assessing the harm to the opposing

party and weighing the public interest.” Nken v. Holder, 556 U.S. 418, 435 (2009).

When the government is the defendant, the analyses of these two “factors merge.”

Id. The district court found in 2021 that these “factors favor preliminary injunctive

relief.” NYSTA I, 544 F. Supp. 3d at 288. The same factors favor a stay here.

The ABA Will Subject Applicants’ Members to Immediate and

Irreparable Harm

Applicants’ members face immediate and irreparable harm from the ABA

absent a stay from this Court. Once New York begins enforcing the ABA on August

16, 2024, broadband providers offering service in New York will face a “Hobson’s

choice” between “continually violat[ing]” the ABA and “expos[ing] themselves to

potentially huge liability; or . . . suffer[ing] the injury of obeying the law during

the pendency of the proceedings and any further review.” Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 381 (1992). On the other side of that choice, broadband

providers that seek to comply with the ABA face immediate and irreparable harm to

their businesses.

The district court found that applicants “adequately demonstrated imminent

irreparable injury largely due to the monetary harm[s]” that their members would

suffer barring an injunction, which are unrecoverable due to the State’s Eleventh

Amendment immunity. NYSTA I, 544 F. Supp. 3d at 276-77. Those harms include

“lost income” from selling broadband at below-market rates, unrecoverable

“advertising costs” to comply with the ABA’s advertising mandate, and

unrecoverable costs to create and maintain systems to verify eligibility. Id. at 277;

see also Ex. 9 (declarations submitted in 2021).

As the attached, new declarations from applicants’ members attest, these

harms remain just as significant and imminent today:

First, the ABA will likely force some members to cancel preexisting plans to

expand broadband networks. See, e.g., Nemer Jeep-Eagle, Inc. v. Jeep-Eagle Sales

Corp., 992 F.2d 430, 435 (2d Cir. 1993) (explaining that “[m]ajor disruption of a

business can be as harmful as termination” and constitute irreparable injury). For

example, The Champlain Telephone Company’s current plans to overbuild its entire

network with fiber optic cable so that it can offer broadband over fiber to all of its

customers would become prohibitively costly given the high percentage of customers

eligible for discounted service under the ABA. See Ex. 10 ¶¶ 3-6 (Northrup Decl.).

The ABA’s mandated prices will similarly cause MTC Cable and DTC Cable to forgo

planned service expansions to bring broadband to currently unserved customers in

rural areas. See Ex. 11 ¶¶ 3, 6 (Faulkner Decl.); Ex. 12 ¶¶ 9-10 (Miller Decl.). The

elimination of these planned investments would cause irreparable harm to these

businesses and cost them goodwill from customers they otherwise could and would

have served.15

Second, the ABA will substantially reduce broadband providers’ revenues

from providing service and in many cases require them to provide service at below

cost. See 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.). These

monetary harms are irreparable because applicants’ members cannot recover or

redress them through legal remedies because of New York’s Eleventh Amendment

immunity. See NYSTA I, 544 F. Supp. 3d at 277; see also, e.g., Odebrecht Constr.,

Inc. v. Secretary, Florida Dep’t of Transp., 715 F.3d 1268, 1289 (11th Cir. 2013) (“In

the context of preliminary injunctions, numerous courts have held that the inability

to recover monetary damages because of sovereign immunity renders the harm

suffered irreparable.”).

15 In May 2021, New York’s Public Service Commission granted Champlain,

MTC, and many other providers that serve no more than 20,000 households a

temporary exemption from the ABA. See N.Y. Gen. Bus. Law § 399-zzzzz(5).

But after the district court preliminarily enjoined the ABA, the Public Service

Commission suspended its proceeding before reaching a final decision. It is unclear

when the proceeding will re-start, the criteria the Public Service Commission will

apply, and whether Champlain and MTC will receive permanent exemptions. As

the providers explain, they cannot make investments relying on the temporary

exemption from the ABA. See Ex. 10 ¶¶ 14-16 (Northrup Decl.); Ex. 11 ¶ 22

(Faulkner Decl.); Ex. 12 ¶ 12 (Miller Decl.); see also NYSTA I, 544 F. Supp. 3d at

278 (holding that the “temporary exemptions” do not eliminate irreparable harm

because they “merely give the PSC more time to decide (viz. potentially deny) the

requests, pursuant to ‘criteria and factors’ not yet identified”).

Third, the ABA will impose on applicants’ members significant and

unrecoverable administrative costs that are likewise unrecoverable from the State.

New York has not created a system providers can use to verify consumers’ eligibility

under the ABA, which instead leaves it to each provider to develop a system for

validating eligibility. See Ex. 10 ¶ 12 (Northrup Decl.); Ex. 11 ¶ 19 (Faulkner

Decl.); Ex. 13 ¶ 8 (Coakley Decl.); Ex. 14 ¶ 5 (Wilkin Decl.). The ABA also requires

providers to spend additional money to advertise to low-income consumers the

availability of the below-market prices. See N.Y. Gen. Bus. Law § 399-zzzzz(7).

This, too, would impose substantial (and unrecoverable) costs. See Ex. 10 ¶ 12

(Northrup Decl.); Ex. 11 ¶ 19 (Faulkner Decl.); Ex. 13 ¶ 12 (Coakley Decl.).

Fourth, if the Court allows the ABA to go into effect but later holds that

federal law preempts the ABA, then the withdrawal of the rate-regulated discounts

the ABA requires would undoubtedly prove unpopular with those customers

benefiting from them — harming the members’ reputations and customer goodwill.

See 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.). That too

constitutes irreparable harm. See Jacobson & Co. v. Armstrong Cork Co., 548 F.2d

438, 445 (2d Cir. 1977) (affirming finding of irreparable harm because plaintiff

“presented ample evidence to show a threatened loss of good will and customers”);

Rogers Grp., Inc. v. City of Fayetteville, 629 F.3d 784, 789-90 (8th Cir. 2010)

(affirming finding that “a loss of goodwill among customers was sufficient to

establish a threat of irreparable harm”).

The Equities and the Public Interest Favor a Stay

Permitting a State to enforce a preempted and therefore unconstitutional

statute harms the public interest. See, e.g., New York Progress & Prot. PAC v.

Walsh, 733 F.3d 483, 488 (2d Cir. 2013) (“[T]he Government does not have an

interest in the enforcement of an unconstitutional law.”); United States v. Alabama,

691 F.3d 1269, 1301 (11th Cir. 2012) (“Frustration of federal statutes and

prerogatives [is] not in the public interest.”); Bank One v. Guttau, 190 F.3d 844,

848 (8th Cir. 1999) (“[T]he public interest will perforce be served by enjoining the

enforcement of the invalid provisions of state law.”).

The ABA is also far from “the sole legislative effort” seeking “to expand access

to broadband internet.” NYSTA I, 544 F. Supp. 3d at 288. The federal government

has allocated “billions of dollars to achieve that same end.” Id. That includes the

federal BEAD program, which is a voluntary federal program that makes available

$42.5 billion in grants and funds for States to disburse — subject to federal

oversight — to expand broadband capacity in unserved and underserved areas.

See 47 U.S.C. § 1702. The broadband providers that voluntarily participate in

the BEAD program must offer at least one “low-cost broadband service option,”

id. § 1702(h)(4)(B), but Congress expressly prohibited construing that obligation

“to authorize . . . regulat[ing] the rates charged for broadband service,” id.

§ 1702(h)(5)(D). Notably, New York’s BEAD proposal deems “a price of no more

than $65 per month” for a service offering “100 Mbps” download speed to constitute

a sufficient low-cost option.16

In addition, Governor Hochul’s $1 billion ConnectALL initiative — “New

York’s largest-ever investment in broadband access” — is designed to “ensure that

all New Yorkers have access to reliable and affordable high-speed broadband

internet service.”17 Among other recent initiatives as part of that plan are $228

million “to connect tens of thousands of homes statewide to high-speed internet

through grants to public entities, local or Tribal governments, municipal utilities,

utility cooperatives, and their private sector partners” and $100 million “to bring

new broadband infrastructure to homes in affordable and public housing.”18 These

efforts and others are highlighted in New York’s recently adopted Digital Equity

Plan.19 None involves rate regulation.

Moreover, while the Affordable Connectivity Program (“ACP”), which

provided $30 per month broadband subsidies to qualifying households, recently

ended,20 the White House has highlighted voluntary commitments by a number of

providers — including those that offer broadband in New York — to offer broadband

16 New York Initial Proposal, Volume II:

Broadband Equity, Access, and

Deployment (BEAD) Program § 12.1, at 127 (Dec. 2023), https://on.ny.gov/46sHw20.

17 Governor Hochul Unveils $50 Million ConnectALL Digital Equity Plan to

Close New York’s Digital Divide (Apr. 5, 2024), https://on.ny.gov/4aWF0By.

18 Id.

19 See New York State Digital Equity Plan (June 2024),

https://on.ny.gov/3RkZ7CG.

20 See Press Release, FCC, FCC Brings Affordable Connectivity Program to a

Close (May 31, 2024), https://docs.fcc.gov/public/attachments/DOC-402930A1.pdf.

plans at a price of $30 or less to low-income households through the end of 2024.21

Those plans should enable most New Yorkers who had been benefiting from the

ACP — and who were paying, on average, more than $40 per month for internet

access after applying the $30 subsidy22 — to continue receiving discounted

broadband service.

Finally, broadband prices continue to decline, even as broadband speeds

increase. From 2022 to 2023, the price of providers’ most popular broadband option

declined by 10% before adjusting for inflation and 18% after adjusting.23 That

decline is consistent with longer-term trends. The price for providers’ most popular

broadband plan declined by nearly 55% in real terms from 2015 to 2023, while

speeds increased by more than 280%.24 In short, even as other goods and services

have gotten more expensive, broadband is getting less expensive while consumers

are receiving better service.

Taking all these factors together, the “balance of the equities and the public

interest” supports a stay, for the same reasons the district court found in 2021.

21 See White House Fact Sheet:

President Biden Highlights Commitments to

Customers by Internet Service Providers to Offer Affordable High-Speed Internet

Plans, Calls on Congress to Restore Funding for Affordable Connectivity Program

(May 31, 2024), https://bit.ly/4cbXi2W.

22 See State Level Data, appended to Public Notice, The Office of Economics

and Analytics and the Wireline Competition Bureau Announce Publication of

Affordable Connectivity Program Transparency Data Collection Summary,

WC Docket No. 21-450, DA 24-504 (rel. May 30, 2024),

https://docs.fcc.gov/public/attachments/DOC-402907A1.pdf.

23 See USTelecom, 2023 Broadband Pricing Index at 2 (Oct. 2023),

https://bit.ly/3Kz36YC.

24 See id. at 3.

NYSTA I, 544 F. Supp. 3d at 288-89. The federal and state programs described

above will ensure that, at most, minimal hardship will result from a stay that would

preserve the status quo and prevent irreparable harm until this Court can resolve

applicants’ forthcoming certiorari petition.

IV.

ALTERNATIVELY, THIS COURT SHOULD GRANT AN INJUNCTION

BARRING THE NEW YORK ATTORNEY GENERAL FROM

ENFORCING THE ABA PENDING DISPOSITION OF APPLICANTS’

CERTIORARI PETITION

For the same reasons that warrant a stay of the judgment, this Court may

alternatively grant an injunction pending disposition of applicants’ certiorari

petition. See Labrador v. Poe ex rel. Poe, 144 S. Ct. 921, 929 n.2 (2024) (Kavanaugh,

J., concurring) (noting that “[t]his Court has used different formulations of the

factors for granting emergency relief,” but “[a]ll formulations basically encompass”

the same factors). Under the All Writs Act, the Court “may issue all writs

necessary or appropriate” to exercise jurisdiction. 28 U.S.C. § 1651(a). As relevant

here, this Court may grant an injunction pending further review when (1) the

applicant faces irreparable harm, (2) grant of certiorari and success on the merits

are likely, and (3) an injunction will not harm the public interest. See Tandon v.

Newsom, 593 U.S. 61, 64 (2021) (per curiam); Roman Cath. Diocese of Brooklyn v.

Cuomo, 592 U.S. 14, 16-19 (2020) (per curiam). Applicants satisfy all three factors,

for the reasons set out above, so the Court can preserve the status quo either

through a stay of the judgment or an injunction directed to the New York Attorney

General, who is the ABA’s enforcer. See N.Y. Gen. Bus. Law § 399-zzzzz(10).

CONCLUSION

This Court should stay the judgment entered by the Second Circuit, thereby

restoring the district court’s preliminary injunction, pending resolution of

applicants’ petition for a writ of certiorari. In the alternative, this Court should

issue an injunction temporarily enjoining New York from enforcing the ABA while

the Court decides whether to grant the petition. Applicants respectfully ask that

the Court rule on or before August 15, 2024, and that the Court issue an

administrative stay, if necessary to provide the Court with sufficient time to rule.

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

August 2, 2024

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

August 2, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.