AG Rejects Preemption Arguments in NY Affordable Broadband Case
New York urged the 2nd U.S. Circuit of Appeals to reject federal preemption arguments of ISP associations contesting the state’s affordable broadband law. Plaintiffs at first argued that field preemption restricts states from regulating “any aspect of the business practices…
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
of broadband providers simply because they deal in interstate communications," but they now "assert on appeal that the allegedly preempted field instead consists of regulation of the rates charged by interstate communications providers,” said AG Letitia James (D) in a Wednesday reply brief in case 21-1975. “But this reformulated argument also fails. Congress has not enacted a uniform, let alone a comprehensive, regime of rate regulation for interstate communications services -- such as telephone (Title II), radio (Title III), and cable television (Title V-A).” The various Communications Act titles “treat each type of service differently and specifically vest the FCC with differing levels of authority over rates,” James said. “And critically for this case, the FCC altogether lacks power to set broadband rates under Title I, leaving the field at issue here federally unoccupied.” Plaintiffs’ other argument that the 2018 net neutrality order "impliedly preempted" New York's law is inconsistent with D.C. Circuit and 9th Circuit appeals court rulings, said James. “If the FCC has no authority to regulate expressly, it has no authority to do so by implication either.” Four ex-FCC members from both parties urged the 2nd Circuit earlier this month to reject the New York law because they said it improperly regulates broadband rates (see 2203030042).