Whether the Communications Act preempts New York's broadband rate-regulation law

QUESTION PRESENTED While the Federal Communications Commission (“FCC”) has repeatedly reversed course on whether broadband internet access service (“broadband”) is a common-carrier telecommunications service under federal law, one thing has remained constant: no government — state or federal — has regulated the rates consumers pay for broadband service. In 2021, New York sought to become the first government to do so, setting $15 and $20 caps on the price that lowincome consumers pay for broadband. A federal district court correctly enjoined the New York Attorney General from enforcing that law, but a divided panel of the Second Circuit vacated that injunction. The Sixth Circuit, in contrast, recently found that challengers to the FCC’s 2024 decision to subject broadband to common-carrier regulation are likely to succeed on the merits and stayed that agency decision. Therefore, at the federal level, broadband remains — and likely will remain — an interstate information service under Title I of the Communications Act of 1934. Congress protected those services from rate regulation and other common-carrier treatment. Although New York has agreed not to enforce its rate-regulation law while the Court resolves this petition, New York continues to assert that it has the right to do what the FCC cannot. This case thus presents the question whether broadband services will remain protected from common-carrier treatment and rate regulation by individual States: Whether the Communications Act preempts New York’s broadband rate-regulation law.