D.C. Memo: N.Y. ISPs Urge Supreme Court to Let Net Neutrality Case Play Out First

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NY ABA: Lawyers for Internet Service Providers in New York yesterday urged the Supreme Court to take their case against a New York law that set the price of Internet service for low-income households. "No government has ever regulated the prices consumers pay for broadband," the ISPs said. New York sought to become the first to do so, through the so-called 'Affordable Broadband Act.'" The ISPs have already asked Justice Sonia Sotomayor to stay the ABA. The ISPs in April lost to the state in the U.S. Court of Appeals for the Second Circuit in New York and want the Supreme Court to reverse that holding. But the ISP lawyers argued that the Supreme Court should await the outcome in the challenge to the FCC's Net Neutrality rules in the U.S. Court of Appeals for the Sixth Circuit in Cincinnati before ruling on the legality of New York's ABA. "This Court should grant the petition and reverse the Second Circuit’s judgment, ensuring that broadband remains subject to uniform, national regulation. Given the interrelationship between this case and the Sixth Circuit’s review of the FCC’s recent order, however, the most orderly approach would be for this Court to do so after the Sixth Circuit or (if someone seeks and this Court grants certiorari) this Court first confirms the Title I classification of broadband. The Court may do so either by holding this petition or by granting it and delaying briefing or argument so the Court can address this issue alongside or after resolution of challenges to the FCC’s order," the ISPs said. In the Sixth Circuit, ISPs want to retain their classification as unregulated information service providers under Title I of the Communications Act. The FCC's Net Neutrality classified them as common carriers under Title II. The Sixth Circuit stayed the rules on Aug. 1. Allowing New York to regulate ISPs classified as information service providers won't "end with broadband. The many services that rely on broadband to reach consumers — such as video and music streaming, cloud storage, email and messaging, and video conferencing — are all themselves interstate information service," the ISPs told the Supreme Court.