“Left to stand, 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. Supreme Court to review and ultimately overturn a decision by the U.S. Court of Appeals for the Second Circuit in an important preemption case affecting the internet. WLF joined TechFreedom in asking the high court to clarify that Congress excluded broadband from rate regulation and other forms of common-carrier regulation by the States.

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 was preempted by the FCC’s 2018 net neutrality order. The District Court agreed and permanently enjoined the law from taking effect. On appeal, the Second Circuit reversed and held that federal law allows New York and other States to regulate broadband rates.

In its brief supporting Supreme Court review, 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.” And in its 2018 order, the FCC also 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.” Fast-evolving, technologically sophisticated services like broadband need the freedom to develop and spread, unhindered by state or federal regulation. This understanding was codified in the “light-touch” regulatory regime that governs all Title I information services. Under the Second Circuit’s reasoning, however, States could impose market entry or exit requirements, rate regulations, and many other onerous regulations on email, text messaging, and much more. That would be a disaster for the internet, for technological progress, and for society.