After Supreme Court loss, ISPs ask Trump admin to block state affordability laws

A California bill would require $15 plans with download speeds of 100Mbps and upload speeds of 20Mbps. The broadband lobby groups’ filing said ISPs are also worried about “unnecessary anticompetitive regulations” proposed in Connecticut, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Pennsylvania, Rhode Island, Vermont, and West Virginia.

Not all the pending state bills are specifically about prices charged to low-income users. Some would impose net neutrality requirements or classify ISPs as utilities, the filing said.

Preempting state laws while simultaneously avoiding federal regulation has been a long-held dream for the broadband industry. During the first Trump administration, then-FCC Chairman Ajit Pai led a vote to eliminate the FCC’s net neutrality rules and preempt all 50 states from passing their own net neutrality laws. But the FCC’s broad preemption attempt failed in court.

When challenging the New York affordability mandate, ISPs claimed the state law was preempted by the Pai FCC’s decision to deregulate broadband. But this argument failed for the same reason that Pai’s earlier preemption attempt failed—the FCC decision to deregulate removed the FCC’s strongest regulatory authority over broadband, and courts have ruled that the FCC cannot preempt state laws in an area that it is not regulating.

The Pai FCC’s “order stripped the agency of its authority to regulate the rates charged for broadband Internet, and a federal agency cannot exclude states from regulating in an area where the agency itself lacks regulatory authority,” the US Court of Appeals for the 2nd Circuit said in the ruling that upheld New York’s law last year.

ISPs keep making same argument

ISPs still aren’t giving up on the argument, as they hope a court might someday rule differently. The lobby groups’ filing reminded the Department of Justice that during the first Trump administration, the government brought a preemption suit against California’s net neutrality law.

“The Department unfortunately dropped out of the litigation after the change in Administration,” the filing said. “But as then-Attorney General [Jeff] Sessions explained in initiating the action, California had ‘enacted an extreme and illegal state law attempting to frustrate [the] federal policy’ of an unfettered market for broadband, and the Justice Department had a ‘duty to defend the prerogatives of the federal government and protect our Constitutional order.'”