“New York’s law would irreparably harm broadband service providers.”
—Cory Andrews, WLF General Counsel & Vice President of Litigation
Click here for WLF’s brief.
WASHINGTON, DC— Washington Legal Foundation (WLF) today urged the U.S. Court of Appeals for the Second Circuit to uphold a permanent injunction in an important preemption case affecting the internet. WLF joined TechFreedom in urging affirmance of the district court’s holding that the Federal Communication Commission’s (FCC) 2018 order excludes broadband from rate regulation and other forms of common-carrier regulation.
The case arises from New York’s first-of-its-kind law, the “Affordable Broadband Act,” which attempts to regulate internet broadband rates. Five industry groups sued, arguing that the law is preempted by the FCC’s 2018 net neutrality order. The District Court agreed and permanently enjoined the law from taking effect. On appeal, New York argues that federal law does not preempt it from regulating rates for broadband providers.
In its amicus brief supporting the plaintiffs, WLF contends that Congress, in the Telecommunications Act of 1996, declared that the internet should remain “unfettered” by state regulation. That law provides that a company offering interstate communications services may be regulated as a common carrier only to the extent that it “provides telecommunications services.” In its 2018 order, the FCC determined that broadband service is not a telecommunications service, but an “information service.” The states, therefore, may not regulate a broadband service as a common carrier.
WLF’s brief also explains the crucial distinction between Title I “information services” and traditional Title II “telecommunications services.” As the FCC has concluded, fast-evolving, technologically sophisticated services like broadband need the freedom to develop and spread, unhindered by state or federal regulation. This understanding was codified into the “light-touch” regulatory regime that governs all Title I information services. This substantive distinction between basic telecommunications services (relatively static services subject to common-carrier regulation) and enhanced information services (fast-progressing services needing lightly regulated competition) resides at the core of federal policy.
Celebrating its 45th year, WLF is America’s premier public-interest law firm and policy center advocating for free-market principles, limited government, individual liberty, and the rule of law.