Seeking to invalidate New York’s Affordable Broadband Act, ISP groups asked that the U.S. Supreme Court review a 2nd U.S. Circuit Court of Appeals 2-1 ruling that federal statute doesn't preempt the state law. However, SCOTUS should wait until lower courts finish reviewing the FCC’s net neutrality order, CTIA, NTCA, USTelecom, ACA Connects, the Satellite Broadcasting and Communications Association and the New York State Telecommunications Association said in a petition for a writ of certiorari Monday.
The FCC "must point to clear congressional authorization" before claiming it can reclassify broadband as a Title II telecom service under the Communications Act, a coalition of industry groups told the 6th U.S. Circuit Court of Appeals in its challenge of the commission's net neutrality rules. The court granted a temporary stay of the rules earlier this month (see 2408010066). The petitioners -- ACA Connects, CTIA, NCTA, USTelecom, the Wireless ISP Association and several state telecom associations -- said in their opening brief filed late Monday (docket 24-7000) that the "best reading of the federal communications laws forecloses the commission’s reclassification."
An FCC notice of inquiry on whether to require cable, phone and broadband providers to offer simple cancellation and access to live representatives is getting applause from consumer advocacy groups. FCC Chairwoman Jessica Rosenworcel's office on Monday circulated the draft customer service NOI. The White House said the NOI was part of a broader "time is money" initiative aimed at consumer woes. In addition, the effort will investigate whether health insurers make it difficult for customers to submit claims online.
New York state will halt enforcing its affordable broadband law while the U.S. Supreme Court considers a petition from ISP groups for a writ of certiorari, the industry groups wrote to the court Thursday. CTIA, NTCA, USTelecom, ACA Connects, the Satellite Broadcasting and Communications Association and the New York State Telecommunications Association said they plan to file that petition Monday in case 24A138. Last week, the ISP groups filed an application for emergency stay of the state law at SCOTUS. In Thursday’s letter, the groups said they no longer need a ruling on that application by Aug. 15, but they can’t withdraw the request entirely because New York Attorney General Letitia James (D) hasn’t agreed to stay enforcement if the court grants cert, “absent a ruling from the Court compelling it not to enforce that law.” ISPs waited for the 6th U.S. Circuit Court of Appeals to stay the FCC’s order reclassifying broadband as Title II before appealing the 2nd Circuit’s ruling that upheld New York’s law based on a Title I regime (see 2408010065 and 2406170042). The 2nd Circuit ruled in April that federal law doesn’t preempt the 2021 New York law requiring $15 monthly plans with 25 Mbps download and 3 Mbps upload speeds for qualifying low-income households (see 2404260051). In the Aug. 2 application for stay, the ISP groups said their forthcoming cert 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.”
Benton Institute for Broadband & Society asked the 6th U.S. Circuit Court of Appeals to hold in abeyance scheduled briefings on the pending challenge of the FCC's net neutrality rules following the court's decision to stay the rules and schedule oral argument for the fall (see 2408010065). In a motion Tuesday the FCC did not oppose (docket 24-7000), Benton cited a pending petition before the commission that "makes it possible that other further action of this could likely render moot or alter the issue" presented before the court. "Courts of Appeal commonly hold proceedings in abeyance when overlapping petitions for administrative reconsideration have been filed," Benton said: "That is the most prudent course here." A coalition of industry groups conditionally opposed the motion, saying the court “plainly should not hold industry petitioners’ cases in abeyance, nor should it pause the briefing of industry petitioners’ cases while it considers the abeyance motion.” CTIA, USTelecom, NCTA, ACA Connects, the Wireless ISP Association and several state telecom associations said they didn’t oppose the motion only if Benton sought “for only their own petitions to be held in abeyance.”
Telecom and banking groups urged that the FCC adopt proposed modifications to its letter of credit (LOC) rules for Universal Service Fund support recipients. Comments were posted Tuesday in docket 10-90 (see 2407030062). The commission proposed modifying LOC rules for its high-cost programs and Connect America Fund (CAF) Phase II and Rural Digital Opportunity Fund (RDOF) support recipients.
FCC Chairwoman Jessica Rosenworcel vowed she will continue fighting for the commission's net neutrality order following the 6th U.S. Circuit Court of Appeals' decision that stayed the rules Thursday (see 2408010065). "The American public wants an internet that is fast, open and fair," and Thursday's decision "is a setback, but we will not give up the fight for net neutrality," Rosenworcel said.
Nearly $1 billion in Digital Equity Act funding is now available, NTIA announced Wednesday. The agency's notice of funding opportunity kicked off the competitive grant program (see 2403290039). Meanwhile, in a Tuesday letter, numerous state and national broadband industry associations alerted Commerce Secretary Gina Raimondo that low-cost requirements in the broadband equity, access and deployment (BEAD) program could discourage participation in it.
The 5th U.S. Circuit Court of Appeals in a 9-7 decision sided with Consumers' Research following an en banc rehearing of the group's challenge of the FCC's Universal Service Fund contribution methodology. Calling the contribution factor a "misbegotten tax," the court in a Wednesday ruling in docket 22-60008 held that as a "practical matter," the Universal Service Administrative Co. "sets the USF tax" that's "subject only to FCC's rubber stamp" (see 2406180055). In a statement, Chairwoman Jessica Rosenworcel said the agency will "pursue all available avenues for review."
The U.S. Supreme Court's 2005 Brand X decision "remains binding" on the 6th U.S. Circuit Court of Appeals "under established principles of stare decisis as to all issues the Supreme Court decided in that case," the FCC said in a supplemental brief Friday (docket 24-7000). The court temporarily stayed the FCC's net neutrality order until Aug. 5 (see 2407120052). Brand X held that the Communications Act "gives the FCC authority to classify and regulate broadband service," the agency said. The FCC said the court "remains bound by Brand X" regardless of whether petitioners disagree with the ruling. "Insofar as petitioners now seek to forever freeze in time the former Title I approach, they are not asking the court to respect the Brand X decision under principles of stare decisis, but instead to countermand it," the FCC said. CTIA, USTelecom, NCTA, ACA Connects, the Wireless ISP Association and several state telecom associations said in a joint supplemental brief that Brand X's holding "now dooms the commission's rule." They said that the court "may not accept the commission's new, contrary conclusion that broadband is solely" a telecom service. "Even if Brand Xdid not require this court to reject the commission's argument as a matter of statutory stare decisis , it still supports petitioners' arguments that the best reading of the 1996 Act is that broadband is an information service," the coalition said.