Second Circuit Upholds NY Affordable Broadband Act

In 2021, New York enacted the Affordable Broadband Act (ABA), which requires internet service providers to offer broadband internet to low-income New Yorkers at reduced prices. Providers sued, arguing that the law was both field preempted by the Communications Act of 1934 (as amended by the Telecommunications Act of 1996), and conflict preempted by the FCC’s 2018 order classifying broadband as an information service (and repealing net neutrality rules). The district court had issued a preliminary injunction against the ABA, and later entered a stipulated judgment.

Today, the Second Circuit vacated that judgment (and the injunction), rejecting both preemption theories. Dissenting, Judge Sullivan would have found no appellate jurisdiction in light of the stipulated judgment, and agreeing with the providers on both of their preemption theories.

Notably, oral argument in the case had been held in January 2023, and the 15 months to an opinion is unusual. The FCC’s 2018 order at issue was effectively repealed yesterday. Although that repeal would not moot the case, the agency’s new order would likely alter the analysis.

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