Recent Federal Actions Open the Door for Affordable and Reliable State Broadband Regulation
The Shift to Fiber and the Need for Regulation
As carriers transition from copper-based Plain Old Telephone Service (POTS) to fiber optic networks that support broadband and Voice over Internet Protocol (VoIP), concerns about service reliability and accessibility have intensified. This is especially true now that broadband is an essential part of everyday life. Recent federal court decisions solidify the Public Advocates Office’s legal basis to seek to ensure that affordable and reliable broadband service is available to all Californians. Two recent federal court decisions on this issue are discussed below.
Second Circuit Ruling Clears Path for State Broadband Rate Regulation
On December 16, 2024, the United States Supreme Court declined to review a Second Circuit Court of Appeals opinion in New York State Telecommunications Association, Inc. v. James (2d Cir. 2024) 101 F.4th 135, cert. denied sub nom. NY Telecommunications, et al. v. James, Att’y Gen. of NY, No. 24-161, 2024 WL 5112294 (U.S. Dec. 16, 2024).The Second Circuit upheld New York State’s Affordable Broadband Act (ABA) confirming that state regulation of broadband rates is not preempted by federal law. This case is relevant to California for two key reasons:
- The Second Circuit concluded that federal law does not establish a sufficiently comprehensive rate regulation framework to exclude the states from entering this field.
- The Second Circuit also concluded that the Federal Communications Commission (FCC) cannot exclude states from regulating in an area where the FCC itself lacks regulatory authority.
Thus, the Supreme Court’s decision to deny review of New York’s ABA confirms that states may regulate broadband rates to ensure affordable access for customers.
Sixth Circuit Ruling Strengthens State Regulatory Authority
On January 2, 2025, the Sixth Circuit Court of Appeals reversed the FCC’s attempt to reclassify broadband as a “telecommunications service.” This reclassification would have authorized the FCC to impose federal net neutrality regulations on broadband providers. However, the Sixth Circuit opinion validates the argument that, since the FCC lacks legal authority to impose common-carrier regulations on broadband providers, it also lacks the power to preempt states from doing so. States therefore have a clear path to issue their own regulations to ensure affordable and reliable broadband.
California has already taken proactive steps in this space with its own net neutrality protections, codified in the California Internet Consumer Protection and Net Neutrality Act of 2018 (formerly Senate Bill 822, Wiener). The Ninth Circuit upheld these protections three years ago, ensuring that broadband providers cannot engage in anti-competitive practices that harm consumers.
Broadband Access: A Public Necessity
Reliable broadband access is no longer a luxury – it is a necessity for education, employment, healthcare, and public safety. The Public Advocates Office is committed to advocating for policies that require telecommunications companies to provide basic broadband service at an affordable price to anyone within their service area who requests it.
These recent federal court decisions provide California and other states a clear legal foundation to ensure that broadband is affordable, accessible, and reliable for all.