Judge to Rule Next Week on NY Broadband Affordability Law
A federal judge peppered New York with questions on how the state’s law requiring $15 monthly low-income plans squares with the FCC 2018 net neutrality order. Judge Denis Hurley asked no questions of the ISPs challenging the policy at a teleconferenced oral argument Thursday in U.S. District Court for Eastern New York. Meanwhile, large telcos are seeking DSL exemptions from the law at the Public Service Commission.
Hurley said he plans a written decision June 10 or 11 on whether to grant preliminary injunction against the New York law before it takes effect June 15. The New York State Telecommunications Association, CTIA, ACA Connects, USTelecom, NTCA and the Satellite Broadcasting and Communications Association brought the suit (case 21-cv-2389) that raises preemption issues like those in California net neutrality and Maine ISP privacy cases (see 2106010024).
The judge asked New York to respond to ISPs’ argument the law is “contrary to and in conflict with” the FCC 2018 order reclassifying broadband as an information service. The plaintiff “underscores that point quite decisively,” and if the FCC is treating broadband that way, “that causes me some problems,” said Hurley.
The FCC gave up its own authority to regulate broadband in 2018, and "therefore lost the authority to preempt the states,” said Patricia Hingerton, New York assistant attorney general. The judge interrupted, “Did they lose it, though?” All that remained for the FCC under Communications Act Title I was ancillary authority, Hingerton said. Hurley then asked, “Is it appropriate for the federal government to take the position that what they’re doing is ancillary, it is consistent with their general authority over interstate commerce, and they are not abandoning their authority, rather they’re electing not to exercise it?” Hingerton said the U.S. Court of Appeals for the District of Columbia Circuit rejected that in 2019's Mozilla vacating the preemption order.
The D.C Circuit didn't say no state law is preempted by the 2018 order, said plaintiff's attorney Kellogg Hansen’s Scott Angstreich. As it vacated the preemption directive, the appeals court said it didn’t consider whether surviving portions have preemptive effect under conflict preemption.
Industry counsel said there would be imminent irreparable harm for ISPs if the law take effects. Companies will cancel plans to expand networks to unserved areas, sell to existing customers at a loss and face cash flow shortages, said Angstreich. Temporary PSC exemptions May 20 to some smaller companies don’t eliminate harm, and the agency hasn’t responded to Verizon seeking an exemption for DSL lines in case 21-M-0290, the lawyer said. Keeping the status quo by temporarily stopping the law won’t hurt the public interest, he said.
"All the harm they're talking about is speculative,” Hingerton said. The PSC made some temporary exemptions last month it will consider keeping, and sought comment by June 25 on the issue raised by Verizon about whether it should apply to data services with lower than 25 Mbps downloads, she said. If things are as dire as ISPs allege, temporary exemptions will likely be made permanent, and, if not, providers can seek other remedies then, she said.
Frontier Communications sought exemption Thursday from the affordability law for its DSL lines. The request is “consistent” with Verizon’s motion, the carrier said. “Frontier New York’s DSL-based service is not a ‘high speed broadband service’ within the meaning of the statute, and an unreasonable interpretation thereof could be read to mandate the massive efforts and expenditures that would be required to provide the high speed service standards set forth in the” affordability law.