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Comment by jmclnx | Hacker News Reader

>ISPs asked the US Supreme Court to strike down a New York law that requires broadband providers to offer $15-per-month service to people with low incomes

With this US Supreme Court, I expect this New York Law will be overruled.

But I believe NY has another option. Tax all ISP revenue (before deductions) over a certain amount at 99% (I wanted to say 100). Those funds could then be distributed to the poor.

In the ACA Case, the US Supreme Court upheld the ACA because part of it was considered a Tax. They said they cannot overrule Tax Policy. So this would be an option for New York and other States.

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> With this US Supreme Court, I expect this New York Law will be overruled.

Why? Just because the court is conservative and this is a progressive law, or is there is an actual legal basis for the court to overturn this law?

The Supreme Court isn’t limited to what has an actual legal basis. Like jury nullification it’s a loophole arising from being the ultimate arbitrator.

Yeah, but they still have to argue something in the decision that isn't "we don't like this law". They have to argue that the state doesn't have the constitutional authority to make the law, or something like that.

I'm not sure that's stopped them; it would be trivial for them to find some reason, as long as it leads to the conclusion they want.

No they don’t. Opinions are customary, but there is no law or regulation requiring that.

Lawyers make arguments. Judges make decisions.

No, they really don’t.

The supreme court’s power isn’t checked. The justices have the final say on just about everything.

The originalists will argue that since Net Neutrality wasn't written into the constitution then it is unconstitutional.

Neither is the Supreme Court's power of judicial review but the originalists don't seem to take issue with that.

Requiring companies to provide a service to certain customers at a set price without compensation is a violation of the 5th Amendment. Pf course, New York and other states got away with this when they refused to allow evictions during the early years of the Covid Pandemic... but it this law goes even further, isn't during a health emergency, and doesn't even allow for a theoretical debt to be "owed" that there is no chance of ever collecting.

The law is absurd and absolutely should be stuck down.

$15/mo is compensation.

Corporations are not people, as much as some court decisions and politicians would like us to believe they are. A corporation's 5th amendment rights cannot be violated, because it does not have those rights.

Corporate charters are allowed to exist at the pleasure of the government.

Is the compensation “just,” though? Seems like an awfully round number to be the result of a fair-minded analysis.

The Affordable Care Act mechanism always struck me as one somewhat fair way to do it: the insurers set a price for a more-or-less well-defined product in a well-defined market. They compete with each other on that price, then the government achieves its desired social effects by subsidizing low-income insureds in proportion to that commercially-derived price.

Just saying “well, insurance is $5 now” seems less convincingly fair to the people doing the work to deliver the service. And rather less sustainable in the long run.

The compensation has to be just, which generally means Fair Market value. Corporations are owned by people, taking something from a corporation is no different than taking the thing from the corporations owners. Further, the law applies to not only corporate ISPs, but also individuals operating an ISP.

Alternatively, the service is unsuitable to be run for-profit and yet needs to exist, it should be run by the government.

I don't mind the idea of the government (probably a municipality being the best level, perhaps with funding front he state and federal government) building out (or buying at a just compensation) a fiber optic network and providing the service themselves. Though having the government own the network and selling access to service providers on a open access system may be a better plan than providing the service directly... either way, according to the will of voters, sounds like a fine plan.

Because corporations want it overruled.

Because the trend on HN is to be reddit-tier absurd and hyperbolic when it comes to the US Supreme Court.

That may be true in a general sense, but how do you figure, in this particular case? It seems entirely likely to me that SCOTUS will overturn this NY law, based on their actions over the past several years. Maybe they won't, and that would be great, but I think it's likely they will.

Regarding this specific case, I personally have no idea. I've had many times where I thought a suit wouldn't hold up in court, only to find that there was a sensible legal precedent for it to hold up (at least in terms of "yeah, this rule exists, so following the rule makes sense"). I've also had the opposite too, so overall I genuinely have no prediction on how the court will rule. Even the article itself kind of shows that the outcome isn't clear, seems like some judges think there is a legal basis for NY's law, others think that ISPs might be able to make a stronger argument.

I'm not even sure if the court will rule at all, since unless I'm mixing up the way things work between different countries, the US Supreme Court gets to pick which cases it considers to be worth taking.

I can’t blame them. This is the same court that removed rights from half of Americans and tends to be extremely pro corporation.

Not too mention the bribery that some members engage in and an unwillingness to abide by any ethical standards.

Then you read that certain members of SCOTUS want to abolish OSHA.

At some point you don’t get to claim to be nonpartisan when you rule by partisan lines.

> same court that removed rights from half of Americans

when laws are made out of Congress, they can be struck down out of Congress. if it's important enough, ask your representatives and senators to turn it into a proper law.

It’s really hard to advocate for this when one side is a deliberate bad actor that refuses to legislate.

It is a great political strategy tho. Use the courts to tell a do nothing Congress to pass legislation.

That isn't the strategy. The strategy is to encourage gridlock in Congress, stack the courts and legislate through them by proxy.

do not confuse lethargy with strategy.

(Sir Humphrey)

I agree. Why the hell do we need the 1st Amendment anyway?!

exactly, because the first amendment was passed by SCOTUS after all.

>Not too mention the bribery that some members engage in and an unwillingness to abide by any ethical standards.

I agree. The behavior that Justice Sotomayors staff have exhibited in regards to prodding public institutions to buy her books (a practice that has earned her over $3 million since she was appointed to the court) is downright shameful.

Yeah, it was shocking to learn that SCOTUS doesn't have an independent ethics board. It was last year where they declared they will police themselves, which they don't seem capable of doing.

At least Congress has an independent nonpartisan ethics board.

I don't understand how this is, at all, hyperbolic.

It's very clear and obvious, regardless of your political affiliation, that this court:

1. is extremely conservative

2. plays fast and loose with precedent

3. has an originalist stance to the constitution, at least when convenient to conservative political stances

There're multiple landmark cases demonstrating this. To me, this isn't even a political opinion - it's just the clear and evident truth of how this court operates.

Compelled pricing is quite rare, for example when regulators used it as an alternative to breaking up the original phone monopoly. If they don't admit there's a monopoly that should be subject to special regulations or face immediate break up then its not clear why they are forcing supposedly normal market participants to specific pricing.

A potential legal basis is preemption by federal explicit non-regulation of the space.

What's going on here is that the ISPs are essentially arguing contrary positions of law: to challenge the federal effort, they're arguing that the FCC has no authority to promulgate this kind of regulation; while to challenge the state efforts, they're arguing that the FCC's authority [that they're also arguing doesn't exist in the other case!] supersedes the state's authority.

> while to challenge the state efforts, they're arguing that the FCC's authority

FCC, or Congress?

Congress established the statute that gave the FCC authority.

Well they're arguing the statute didn't give the FCC this authority, right?

They're both arguing that it did and it didn't, depending on which view works better for them in which regulation they're arguing against.

My understanding is they're arguing that the FCC didn't have the authority to regulate net neutrality, but that Congress has the sole authority and/or occupies the field (and thus states can't). That doesn't seem incongruous?

> My understanding is they're arguing that the FCC didn't have the authority to regulate net neutrality,

The fight to preserve net neutrality rules was actually (and continues to be) a fight to preserve most of the FCC's ability to regulate ISPs at all [1]:

> On October 19, 2023, the Federal Communications Commission (FCC) adopted a Notice of Proposed Rulemaking (NPRM) that proposes to reclassify broadband internet access service (BIAS) as a Title II common carrier service and reinstate net neutrality rules.

...

> The FCC’s ability to adopt net neutrality rules depends on the legal classification of BIAS under the Communications Act of 1934 (“the Act”). As amended, the act defines two mutually exclusive categories of services: telecommunications services and information services. While telecommunications service providers are treated as highly regulated common carriers under Title II of the act, the FCC has much more limited regulatory authority over information service providers.

The FCC under Ajit Pai changed the classification of broadband providers from Title II ("information services") to Title I ("telecommunications services"). The FCC under Jessica Rosenworcel is trying to change broadband providers back to Title II, which (among other things, I assume) would allow the FCC to treat broadband providers as common carriers. The FCC might be able to regulate rates (meaning prices, not bandwidth) for internet service if ISPs are common carriers, but I'm not completely certain.

The 6th Circuit court case mentioned in the last section of the article is large ISPs' attempt to argue that the FCC has no authority to treat broadband providers as Title II services. Hence, the last section of the article is called

> FCC must show that broadband is telecommunications

The main court case of the article is about a New York state law which would regulate rates for internet service for low-income households. The FCC can't regulate rates without Title II authority. (Relying on the 10th Amendment, I assume) New York believes that the states have the authority to regulate ISPs in such a way (barring constitutional restrictions such as the Dormant Commerce Clause or the First Amendment). The large broadband providers are trying to petition the Supreme Court and argue that the FCC's Title I authority over broadband providers preempts states' attempts to regulate broadband providers in ways that the FCC would only be able to do with Title II authority. If the ISPs' argument prevails, the outcome would be that both the FCC and the states would lack authority to regulate rates on internet service, treat ISPs as common carriers, or impose net neutrality rules.

[1][PDF] https://crsreports.congress.gov/product/pdf/IF/IF12513

I think they could find another reason to strike it down.

IMO, part of why the ACA was upheld is that it is (or was) a model that conservatives wanted to apply when privatizing other government functions. (e.g. Social Security) Roberts in particular appears to believe in this sort of wonkish conservatism and it played well with liberals giving him some of the "above politics" veneer that has since been lost.

If you live in a state that taxes away 100% of your income, what would you do?

(I'm even going to steelman your argument and assume you meant profit and not revenue.)

It would be great if they stopped doing business in that state. The government could then assert ownership over all their infrastructure, divide it up among smaller local governments, who could then provide competitively-priced municipal broadband service.

That would be amazing.

Wouldn't that lead every other business to stop investing in additional infrastructure in that state ever again?

The infrastructure telecoms were paid billions to develop in the 90s, but pocketed the cash instead?

It would certainly be terrible beyond belief if we all had to rely on municipal internet like Chattanooga.

> The government could then assert ownership over all their infrastructure

That's called "taking", and is unconstitutional unless there is just compensation. And "they're not using it, so the value is 0" is not just compensation.

looks like legitimate salvage to me...

NY wants to have ISP charge the poor $15, so all pretax revenue over that $15 amount paid by the poor will be taxed at 99% (or 100%), up to NY.

Somehow the total paid by the poor can be prorated to total ISP revenue and taxed based upon that + admin costs. That tax amount will be sent back to the poor as a refund.

Tax is at the revenue level because as we have seen, there are so many deduction they could report 0 income.

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