Big loss for ISPs as Supreme Court won’t hear challenge to $15 broadband law

The Supreme Court petition was filed by the New York State Telecommunications Association, CTIA-The Wireless Association, NTCA-The Rural Broadband Association, USTelecom, ACA Connects-America’s Communications Association, and the Satellite Broadcasting and Communications Association. Cable lobby group NCTA filed a brief supporting the petition.

New York Attorney General Letitia James defended the state law in a Supreme Court brief filed in October. The brief said that when New York enacted its law, the Pai-era FCC "had classified broadband as an information service subject to Title I of the Communications Act. Under Title I, Congress gave the FCC only limited regulatory authority—leaving ample room for States to regulate information services."

Multiple appeals courts have found "that federal law does not broadly preempt state regulations of Title I information services," and "Congress has expressed no intent—much less the requisite clear and manifest intent—to preempt state regulation of Title I information services," the New York brief said. "Applicants’ field preemption claim fails because, far from imposing a pervasive federal regulatory regime on Title I information services, Congress instead gave the FCC only limited authority over information services. Congress thus left the States’ traditional police powers over information services largely untouched."

Law requires $15 price, or $20 for higher speeds

It's unclear when New York might start enforcing its law. The state law was approved in 2021 and required ISPs to offer $15 broadband plans with download speeds of at least 25Mbps, with the $15 being "inclusive of any recurring taxes and fees such as recurring rental fees for service provider equipment required to obtain broadband service and usage fees."

The law also said ISPs could instead choose to comply by offering $20-per-month service with 200Mbps speeds. Price increases would be capped at 2 percent per year, and state officials would periodically review whether minimum required speeds should be raised.

Residents who meet income eligibility requirements would qualify for the plans. ISPs with 20,000 or fewer subscribers would be allowed to apply for exemptions from the law.

The New York attorney general's Supreme Court brief argued that public-interest factors "weigh heavily in favor of allowing" the law, and that it won't create the economic problems that telco groups warned of. "The three largest broadband providers in New York are already offering an affordable broadband product to low-income consumers irrespective of the ABA, and smaller broadband providers can seek an exemption from the ABA’s requirements," the brief said.