Today, TechFreedom filed an amicus brief urging the U.S. Supreme Court to review a Second Circuit decision that opens the way for states to regulate broadband as common carriage. At issue is a New York statute that imposes rate regulations on broadband providers. Rate regulation is a quintessential common-carriage regulation. But as a recent Sixth Circuit ruling confirms, broadband is not common carriage under federal law. More specifically, broadband is a Title I “information” service, subject to light-touch regulation, rather than a Title II “telecommunications” service, subject to onerous common-carriage regulation.

“New York was not free to ignore the deregulatory aims Congress codified into federal law,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “Congress wants Title I information services to flourish under a light-touch regulatory regime. New York’s law imposing rate regulations on broadband conflicts with Congress’s statutory command. It is therefore subject to ‘conflict preemption’—which is to say, federal law blocks it from taking effect.”

“The Second Circuit simply refused to apply conflict preemption for a deregulatory statute,” Barthold continued. “The court assumed, in effect, that every communications service must be subject to heavy-handed regulation by someone. But federal law (and common sense) tells us that that’s not the case. The Second Circuit didn’t apply preemption law; it just displayed a prejudice against deregulation.”

“The consequences of letting this ruling stand would be catastrophic,” Barthold concluded. “New York’s victory below, if left to stand, would enable intrusive state regulation of any Title I information service. Under New York’s theory, states could impose market entry or exit requirements, rate regulations, and many other crushing burdens on email, text messaging, cloud-computing, and more. That would be a disaster for the Internet, for technological progress, and for society. The Supreme Court needs to grant review.”

TechFreedom was pleased to have Washington Legal Foundation join the brief.

The case is New York State Telecommunications Association, Inc. v. James, No. 24-161 (U.S.).

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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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