Today, TechFreedom filed an amicus brief arguing that the states have no business regulating broadband service rates.

In 2018, the FCC issued its Restoring Internet Freedom Order, which declares that broadband is an “information service” subject to light-touch regulation, rather than a “telecommunications service” triggering extensive common carrier rules and requirements. Acting in defiance of this order, as well as the underlying federal Telecommunications Act, the State of New York tried to impose on broadband the quintessential form of heavy-handed common-carriage regulation: rate regulation of service. A group of broadband providers challenged the law, called the Affordable Broadband Act, in federal court. The trial court ruled that the law is preempted by federal law and blocked enforcement. TechFreedom’s brief urges the Second Circuit to affirm.

“The FCC’s 2018 Order preempts state laws that conflict with it,” said Corbin K. Barthold, TechFreedom’s Director of Appellate Litigation. “New York misses this simple fact not because it’s hard to grasp, but because the state simply refuses to come to grips with what the 2018 Order did. The FCC determined that broadband service is the type of service that Congress decided should not be regulated. The FCC didn’t express a bureaucratic preference that the states are free to ignore. It implemented congressional policy.”

“New York’s mistake is dangerous,” Barthold continued. “In seeking to treat broadband like a common carrier, despite the FCC’s finding that it’s an information service, New York seeks, in effect, the power to treat any information service like a common carrier. New York’s arguments, if accepted, would open the door to intrusive state regulation of all information services. If New York wins this appeal, the states could set market entry or exit requirements, price caps, or pay-for-data rules on email, text messaging, cloud computing, and much more.”

“The states need to stop trying to meddle with the Internet,” Barthold concluded. “New York’s law (among others) is a sign that the ‘net neutrality’ fracas is metastasizing to all levels of government. That’s a terrible development for the Internet, for technological progress, and for society. We need Congress to enact, in federal legislation, those net neutrality principles on which there is wide agreement. It’s time to put the ‘net neutrality’ wars to an end.”

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


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TechFreedom is a non-profit, non-partisan 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.