A Judge has sided with the broadband industry and barred New York State from offering discounted broadband to those struggling during the COVID crisis.
The order by US District Judge Denis Hurley imposes an immediate injunction on New York State, barring it from enforcing the Affordable Broadband Act (ABA), a new state law requiring ISPs provide 25 megabits-per-second broadband for no more than $15-per-month to those struggling financially during the pandemic.
The broadband industry immediately filed suit against the effort, claiming New York was barred from regulating broadband thanks in part to the Trump administration’s 2017 net neutrality repeal. The Trump FCC claimed the repeal would boost job growth and investment in the telecom sector, yet data shows neither actually happened.
Instead, the repeal left the FCC ill-equipped to protect consumers during an economic crisis by eroding much of the agency's consumer protection authority under the Communications Act. At telecom sector request, the repeal also attempted to ban states from being able to step in and fill the consumer protection void left by an apathetic federal government.
Both broadband experts and previous court rulings have argued that when the Trump FCC gave up its authority over broadband providers, it also gave up its right to tell states what to do. Still, the broadband industry continues to use the repeal as the basis of lawsuits undermining state efforts to hold US telecom giants accountable or pass state net neutrality laws.
Judge Haley sided with industry, proclaiming that providing discounted broadband to poor Americans struggling during Covid would impose “unrecoverable losses” on the hugely profitable and heavily monopolized broadband industry.
"Beginning June 15, 2021, Plaintiffs will suffer unrecoverable losses increasing with time, and the enormity of the matter—six plaintiffs with multiple member organizations attacking a statute affecting one-third of all New York households—portends a lengthy litigation," the Judge wrote.
Dana Floberg, a telecom expert at consumer group Free Press, stated that the Biden administration could lend a hand by properly staffing the FCC and reversing the Trump administration’s net neutrality repeal.
“The path forward to reining in exorbitant internet prices is clear,” she said. “We need an FCC empowered with the legal authority to investigate and intervene in the market, and we need a long-term benefit to support internet adoption for low-income people.”
Under the law, the party in control of the White House enjoys a 3-2 partisan majority at the FCC. But the Trump administration’s rush appointment of Trump ally Nathan Simington to the agency last December left the agency intentionally gridlocked at 2-2, incapable of obtaining a majority vote on any issues of controversy.
Despite this, the Biden administration has been in no rush to appoint a new commissioner or reverse the net neutrality repeal. More than fifty consumer groups and union organizations wrote the administration this week asking for more urgency in the matter.
“Restoring the FCC's Title II authority over broadband would give the agency the strong, flexible toolbox it needs to curtail unjust and discriminatory practices, including unreasonable pricing schemes, while avoiding the pitfalls of rate-setting,” Floberg said.
Cable and broadband providers routinely engage in all manner of dodgy pricing practices, from the use of sneaky fees to dramatically jack up advertised prices, to charging users “modem rental fees” for modems they already bought and paid for. With eroded authority, the agency can’t fully hold misbehaving ISPs accountable under the law.
Meanwhile, up to 42 million Americans still lack access to broadband, while an estimated 83 million Americans live under a broadband monopoly (usually Comcast), resulting in Americans paying some of the highest prices for broadband in the developed world, another issue broadband experts say a handcuffed FCC won’t be able to adequately address.
“There is certainly still a role for state regulators to play in ensuring universal, affordable, equitable broadband adoption — but what we are seeing now is the direct result of the Trump FCC's abdication of its responsibilities as an expert agency, an abdication that must be rectified by a fully-staffed FCC as soon as possible,” Floberg said.