Best Payphones, Inc. v. Public Service Commission of New York, et al.

Congress enacted the Telecommunications Act of 1996 (“Telecom Act”) to “promote the widespread deployment of payphone services to the benefit of the general public.” 47 U.S.C. § 276(b)(1). The Telecom Act mandated that Bell operating companies “(1) shall not subsidize its payphone service . . . and (2) shall not prefer or discriminate in favor of its payphone service.” 47 U.S.C. § 276(a)(1) and (2); and directed the Federal Communications Commission “to prescribe regulations that prescribe a set of nonstructural safeguards . . . to implement the provisions of paragraphs (1) and (2) of subsection (a), which safeguards shall, at a minimum, include the nonstructural safeguards equal to those adopted in the Computer Inquiry-III (CC Docket No. 90–623) proceeding.” 47 U.S.C. § 276(b)(1)(C). And, “[t]o the extent that any State requirements are inconsistent with the Commission’s regulations, the Commission’s regulations on such matters shall preempt such State requirements.” 47 U.S.C. § 276(c). Questions: Is the finding of the Public Service Commission of the State of New York, which was affirmed by the Supreme Court of New York, Appellate Division, Third Department, that tariffs for independent payphone providers comply with orders of the Federal Communications Commission, preempted by 47 U.S.C. § 276(c).