Today, the U.S. Court of Appeals for the Second Circuit issued an opinion holding that the Federal Communications Act does not preempt a state law requiring that ISPs offer a low-priced broadband service ($15/month for 25 Mbps; $20/month for 200 Mbps) to low-income consumers. The Benton Institute for Broadband & Society filed an amicus curiae brief jointly with Public Knowledge supporting the New York statute and calling for the court to reverse a lower court injunction that had blocked the law. Benton Senior Counselor Andrew Jay Schwartzman issued the following statement:

This decision upholds an important tool for broadband deployment as well as an important principle. Low-income Americans need broadband just as much as all other consumers. Broadband gives all of us access to education, healthcare, government services, employment opportunities, and the information necessary to participate in civic discourse and to vote wisely.

Today’s decision holds that FCC regulations do not interfere with the states’ ability to ensure that their residents have affordable access.

The success of the Affordable Connectivity Program (ACP), the national $30 per month broadband subsidy provided by the 2021 infrastructure law, demonstrates the importance of providing affordable access. Unfortunately, even though ACP has been so successful that it has exhausted its original appropriation more quickly than expected, Congress has failed to replenish it, and the subsidies will end in a few weeks.

This decision provides a roadmap for other states to follow to join New York in doing what the federal government has thus fair failed to do.

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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