Broadband access is no longer a luxury; it’s a necessity. Imagine trying to attend school, work from home, or even apply for jobs, all without reliable internet. This is the reality for millions of Americans, particularly in low-income communities and communities of color, where the digital divide remains a significant barrier to opportunity. In response to this growing problem, in April 2021, New York passed the Affordable Broadband Act (ABA), a groundbreaking law that requires internet service providers (ISPs) to offer affordable broadband plans to qualifying households. The law’s passage in 2021 underscores how long the process has taken to address this critical issue.
The ABA doesn’t just address the economic inequalities that prevent families from accessing broadband; it seeks to tackle a fundamental issue: digital inclusion. The law ensures that the internet is accessible not just to the affluent, but to everyone, regardless of income. By setting clear standards for affordable broadband access, the ABA represents a major step toward closing the digital divide and ensuring that reliable internet is a universal right.
At the heart of the ABA are its pricing requirements, which mandate that Internet Service Providers (ISPs) offer broadband plans at rates affordable to low-income households. Under the ABA, ISPs must offer plans priced as low as $15 per month for speeds up to 25 Mbps and $20 per month for speeds up to 200 Mbps. These pricing benchmarks are designed to address the affordability gap that keeps many families disconnected, forcing them to rely on unreliable or unaffordable internet options.
The ABA includes an appeal mechanism for smaller ISPs serving 20,000 or fewer households, allowing them to apply for exemptions if they can demonstrate that complying with the mandated pricing would impose an “unreasonable or unsustainable financial impact.” In 2021, over 40 small ISPs were granted temporary relief under this provision. To retain these exemptions, providers were required to formally reapply by January 15, 2025, and submit detailed financial documentation by February 15, 2025. These submissions are to be reviewed by the New York Public Service Commission (PSC) to determine whether long-term exemptions will be granted. Meanwhile, ISPs with more than 20,000 subscribers are required to comply with the law’s pricing mandates by January 15, 2025, with non-compliance subject to civil penalties of up to $1,000 per violation.
In a world that has increasingly shifted to digital platforms, these pricing rules are crucial. For many families, the cost of broadband has been a significant barrier to accessing educational resources, healthcare services, job opportunities, and the benefits of civic engagement. With the ABA’s affordable pricing requirements, New York has taken a major step towards ensuring that those who need access to the internet the most can readily afford it.
The Legal Battle: New York State Telecommunications Association v. James
The ABA has sparked a significant legal battle, raising questions about whether New York’s state regulations could stand in the face of federal law. In New York State Telecommunications Association v. James[1], the issue was whether the ABA was federally preempted, including by the Federal Communications Commission (FCC)’s 2018 decision to re-classify broadband as an “information service” under Title I of the Telecommunications Act.
In 2018, the FCC made the controversial decision to reclassify broadband as an information service, arguing that broadband providers should be regulated lightly to encourage innovation and investment. This reclassification effectively removed broadband from the more heavily regulated telecommunications service category under Title II, which includes stricter consumer protections, net neutrality rules, and price controls.
By reclassifying broadband, the FCC hoped to foster growth in broadband infrastructure. However, this shift also meant that ISPs were no longer subject to the oversight typically applied to telecommunications services under Title II. Critics, however, argue that this deregulation allowed ISPs to overcharge customers and limit access for low-income families. In essence, broadband was left to operate with fewer regulations, leading to a market where prices could be set without strict oversight, leaving the door open for exploitation, particularly among vulnerable communities.
In New York State Telecommunications Association v. James, the Second Circuit Court of Appeals rejected the industry’s argument that the FCC’s reclassification preempted New York’s state-level regulations. The Second Circuit pointed out that ISPs had “got what they lobbied for” when broadband was reclassified as an information service. In other words, ISPs successfully pushed for deregulation at the federal level, and now they could not use federal authority to shield themselves from state consumer protection regulations. In 2025, the Supreme Court denied certiorari solidifying the Second Circuit’s decision as the final ruling. The standard for Supreme Court review in these types of cases is that the court typically only accepts cases that involve significant legal questions or disagreements between different courts. The Supreme Court’s decision not to intervene in this case sends a strong message about the power of state regulation in the absence of federal action on broadband issues.
Ironically, the Second Circuit noted that if ISPs were dissatisfied with the legal landscape, they could go back to Congress to seek a new law that preempts state-level regulations. This ruling affirms that when federal oversight is lacking, states have the right to step in and regulate broadband access in ways that align with their local needs.
As a result of this ruling, New York can now enforce the ABA’s affordability requirements without fear of preemption by federal law. This decision sets a legal precedent that could guide other states seeking to implement similar regulations.
The Path Forward: A Blueprint for Other States
The ABA is a landmark law, but it is just the beginning. By upholding New York’s right to regulate broadband in the absence of federal oversight, the Second Circuit’s decision has created a legal precedent that may inspire other states to follow suit. If more states enact laws that promote digital equity and ensure affordable broadband access, we may see a nationwide shift toward making broadband a public utility, similar to water or electricity.
This case also reinforces the idea that state-level regulation is essential to ensuring that broadband access remains a public good rather than a market commodity. As the digital divide continues to be a pressing issue, the ABA serves as a model for other states that may want to tackle the affordability problem head-on. In response to the legal victory that upheld the ABA, several states are now exploring similar legislation to ensure affordable internet access. In Massachusetts, lawmakers have introduced a bill that would cap monthly broadband prices for low-income residents at $15, while requiring speeds of at least 100 Mbps. California is advancing Assembly Bill 353, authored by Assembly-member Tasha Boerner, which would require ISPs to offer affordable home internet plans to residents, especially targeting those at risk of disconnection due to the expiration of federal subsidies. Meanwhile, Vermont is considering legislation modeled directly after New York’s ABA, recognizing the digital divide in rural and underserved communities and seeking to codify broadband as an essential utility. These state-level initiatives signal a growing consensus: affordable internet is not a luxury, but a necessity, and states are stepping up to fill the regulatory void left by federal inaction. The ripple effect of the ABA could very well reshape broadband policy across the country, marking the beginning of a larger movement to treat broadband as a public utility. On the other hand, it could spur Congress and the FCC to step back in and regulate broadband as a telecommunications service.
In all, the battle for digital equity is far from over. While New York has taken a significant step with the ABA, the success or failure of this law will set the stage for other states to push for similar policies. Ensuring that broadband access is a right, not a privilege, will require continued vigilance, innovation, and collaboration at both the state and federal levels. The ABA is just the beginning of a broader movement to secure digital equity for all, and its success or failure will serve as a benchmark for future efforts to close the digital divide.
by Jayla Rose
Jayla Rose is a 2L at the Elisabeth Haub School of Law at Pace University and is an extern with Robert D. Gaudioso at Snyder and Snyder, LLP.
[1] ¹ New York State Telecommunications Association, Inc. v. James, 101 F.4th 135 (2d Cir. 2024), cert. denied, No. 24-161, 2024 WL 5112294 (U.S. Dec. 16, 2024).