Brief of Internet Law Professors as Amici Curiae in Support of Defendant-Appellant

Publication Type: 
Litigation Brief
Publication Date: 
December 1, 2021

The district court held that New York’s Affordable Broadband Act, N.Y. Gen. Bus. Law § 399-zzzzz (“ABA”), is preempted because Congress occupied the entire field of interstate communications, stripping the states of their preexisting police power. This is a sweeping claim. If affirmed, it would invalidate vital state laws regulating areas of traditional local concern—including consumer protection, public health, and public safety. In many cases, Plaintiffs’ and the district court’s theory would leave both the FCC and the states without regulatory authority, leaving Americans wholly unprotected from harms by interstate communications providers.

Nothing in the text and structure of the Communications Act of 1934 (“Communications Act” or “Act”) or the long history of judicial decisions interpreting the scope of federal preemption under that statute supports this position. Plaintiffs’ field preemption claim is also inconsistent with the Act’s recognition of a role for states in regulating interstate communications, the longstanding practice of states doing so, and the case law upholding those regulations and practices. Even if the Plaintiffs’ claim were confined to “interstate information services,” which it does not appear to be, the limited nature of the FCC’s ancillary authority over these services is impossible to square with the essential requirement for field preemption: “a framework of regulation ‘so pervasive . . . that Congress left no room for the States to supplement it.’” Arizona v. United States, 567 U.S. 387, 399 (2012) (alteration in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Instead, the text, structure, and history of the Telecommunications Act of 1996 (which introduced information services), coupled with its explicit prohibition on implied preemption, all demonstrate the contrary: Congress did not intend to create a regulatory void where neither the FCC nor the states could regulate many of the interstate information services that are now so central to modern life.