TR Daily Supreme Court Declines to Review D.C. Circuit Open Internet Ruling
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Monday, November 5, 2018

Supreme Court Declines to Review D.C. Circuit Open Internet Ruling

The U.S. Supreme Court today declined to review a 2016 decision by the U.S. Court of Appeals for the District of Columbia Circuit upholding the FCC’s 2015 open Internet order. Parties that had asked the justices to review the lower court’s decision characterized today’s announcement as expected given the pending legal challenges of the FCC’s 2017 restoring Internet freedom (RIF) order, while backers of the 2015 order welcomed the development.

It takes four justices to grant a petition for certiorari. The court said today in its orders list that “Justice [Clarence] Thomas, Justice [Samuel A.] Alito [Jr.], and Justice [Neil M.] Gorsuch would grant the petitions, vacate the judgment of the United States Court of Appeals for the District of Columbia Circuit, and remand to that court with instructions to dismiss the cases as moot.” The notice said that Chief Justice John G. Roberts Jr. and Associate Justice Brett M. Kavanaugh “took no part in the consideration or decision of these petitions” (cases consolidated at “Daniel Berninger v. FCC et al.”; no. 17-498).

As a judge on the D.C. Circuit, Justice Kavanaugh dissented from the decision not to grant en banc review of the FCC’s 2015 open Internet order. In his dissent, Judge Kavanaugh said that the net neutrality rule was “unlawful and must be vacated” for two alternative and independent reasons.

Petitions asking the Supreme Court to review the D.C. Circuit’s decision upholding the 2015 open Internet order were filed by the American Cable Association, AT&T, Inc., CTIA, NCTA, the U.S. Telecom Association, TechFreedom, and VCVX founder Daniel Berninger, in some cases with other parties (TR Daily, Sept. 28, 2017).

Among other things, the 2015 open Internet order reclassified broadband Internet access service, including mobile broadband, as a telecommunications service subject to common carrier regulation under Title II of the 1934 Communications Act, as amended (TR Daily, Feb. 26, 2015). It also adopted bright-line rules against blocking, throttling, and paid prioritization, its “general conduct rule,” and an enhanced transparency rule.

In a 2016 split decision, the D.C. Circuit upheld the order (TR Daily, June 14, 2016).

The FCC adopted its RIF order last December (TR Daily, Dec. 14, 2017). The item reversed the 2015 classification of broadband Internet access services as a telecommunications service subject to common carrier regulation.

The declaratory ruling, report and order, and order reinstated the pre-2015 classification of mobile broadband as a private mobile service, thus removing it from Title II regulation as well. The Commission found that the “regulatory uncertainty” created by the Title II classification of broadband services reduced network investment and that the information service classification is more likely to encourage broadband investment and innovation, according to the staff meeting presentation and an agency press release.

The item also eliminated the 2015 order’s bright-line rules against blocking, throttling, and paid prioritization, as well as its general conduct standard, which the FCC called “vague and expansive.” It imposed specific transparency requirements on Internet service providers, directing them to disclose if they engage in blocking, throttling, paid prioritization, or prioritization of affiliate content or services.

A wide variety of industry, public interest, and governmental entities are challenging the RIF order (consolidated cases beginning with Mozilla Corp. v. FCC, case 18-1051). The cases were consolidated at the Ninth Circuit (San Francisco), which transferred the cases to the D.C. Circuit in response to an unopposed motion filed by most petitioner (TR Daily, March 28).

“While we believed that the appropriate procedure here was to vacate the prior D.C. Circuit decision, that decision makes clear that the Commission has the discretion to classify broadband as an information service so we are confident that it supports the Commission’s 2017 Restoring Internet Freedom Order,” an FCC spokesperson said today on the Supreme Court’s decision not to review the 2015 order. “Indeed, our brief in the pending D.C. Circuit litigation assumed that the prior decision would not be vacated.”

In a tweet, Democratic Commissioner Jessica Rosenworcel said, “It wasn't enough for this @FCC to roll back #NetNeutrality. It actually petitioned the Supreme Court to erase history and wipe out an earlier court decision upholding open internet policies. But today the Supreme Court refused to do so.”

“The FCC’s Open Internet Order is regarded as settled law by the courts, and that is what today’s decision by the Supreme Court really means,” said Sen. Ed Markey (D., Mass.). “This is an important win for the internet and all Americans who support strong net neutrality rules. Although the current FCC repealed those net neutrality rules in 2017 in a fit of partisan overreach, businesses, states, and public advocates have all joined together to challenge that repeal in court. I am proud to stand with them, having led an amicus brief with over 100 members of the Senate and House. We will continue to fight until net neutrality is once again the law of the land.”

“This decision is not surprising because the D.C. Circuit’s original decision was superseded by the FCC’s Restoring Internet Freedom Order that correctly restored broadband as an information service,” said USTelecom President and Chief Executive Officer Jonathan Spalter. “RIF remains the law of the land and is essential to an open internet that protects consumers and advances innovation. USTelecom will continue to support that order from challenges in Washington, D.C. and state capitals.”

“It is not surprising that the Supreme Court declined to hear this case dealing with the Wheeler FCC’s 2015 Order. Once the current FCC repealed the 2015 Order, almost all parties – including NCTA – agreed that the case was moot. Today’s decision is not an indication of the Court’s views on the merits but simply reflects the fact that there was nothing left for the Court to rule on,” NCTA said.

“The Supreme Court's decision was not unexpected,” said Matthew Polka, president and CEO of ACA. “The FCC’s RIF order found the proper balance between promoting innovation and investment in the U.S. broadband market and ensuring an open Internet. ACA will continue with its efforts to defend the RIF order in federal court and fight impermissible interference with the national regime by the states.”

“We always knew it was unlikely that the Court would take this case now that the FCC has reversed its sweeping claims of power over the Internet, but unless Congress legislates, the Court will eventually have to confront the question we alone have raised: should courts defer to such claims?” said Berin Szóka, president of TechFreedom. “The Court upheld the FCC’s 2002 decision not to impose heavy-handed common carriage regulation, including price controls, on broadband, applying the deferential standard of the landmark 1984 Chevron decision. The D.C. Circuit upheld the FCC’s 2015 decision to impose such regulation under the same level of deference. While the lower courts have not clearly distinguished between major and minor questions, the Supreme Court has done so in a series of cases.”

But Free Press Policy Director Matt Wood said, “We’re grateful that a majority of the justices saw through the flimsy arguments made by AT&T and Comcast lobbyists. The ISPs went all out to push FCC Chairman Ajit Pai to repeal the agency’s Net Neutrality rules — and then ran to the Supreme Court looking for a do-over on earlier cases that rightly upheld those rules.”

“There was absolutely no reason for the Supreme Court to take this case, and today’s denial puts to bed the chances of upending the correct appellate-court decisions. Now we look forward to filing our final brief in the new appeal challenging the Pai FCC’s mistakes, and to making the argument in front of the D.C. Circuit this February in this latest round to save these crucial rules,” Mr. Wood added.

“This is good news for net neutrality supporters,” said John Bergmayer, senior counsel at Public Knowledge. “The D.C. Circuit's previous decision upholding both the FCC's classification of broadband as a telecommunications service, and its rules prohibiting broadband providers from blocking or degrading internet content, remains in place. While the current FCC has repealed those rules – a decision Public Knowledge is currently challenging in court – this means that the previous decision is binding on the current FCC, and on the D.C. Circuit panel that hears the current challenge. Much of the current FCC’s argument depends on ignoring or contradicting the D.C. Circuit’s earlier findings, but now that these are firmly established as binding law, the Pai FCC’s case is on even weaker ground than before.”- Paul Kirby, [email protected]

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