The Supreme Court Didn’t Take the Net Neutrality Case, and That’s Good

Written by Stan Adams

On Monday, the Supreme Court announced its decision not to hear an appeal to the D.C. Circuit’s decision in US Telecom Association v. FCC, which upheld the FCC’s 2015 Open Internet Order and its net neutrality protections. But that order and the rules it created to ensure ISPs treat all internet traffic fairly have since been replaced (read eliminated) under the chairmanship of Ajit Pai. With the net neutrality rules off the books, the Court had nothing left to review, so not taking the case makes sense. Even so, the Court’s flat denial is the best end to that case for other reasons.

CDT was a party to the case, and in August, joined Public Knowledge, New America’s Open Technology Institute, Ad Hoc, Vimeo, and the National Association of Regulatory Utility Commissioners in asking the Court not to take the case because it really presented nothing worthy of the Court’s time. More importantly, we also asked the Court to refrain from wiping the D.C. Circuit’s opinion in US Telecom off the books using an obscure judicial doctrine from an older case called Munsingwear.

According to Munsingwear, the Court can vacate (eliminate the precedential value of) a lower court’s decision if the case becomes moot before the Court can consider it. There are several important caveats to this doctrine which we felt were not satisfied in the US Telecom proceeding. Primarily, a party seeking vacatur (in this case, the Department of Justice on behalf of the FCC) should not be responsible for causing the intervening mootness (in this case, the FCC by repealing the 2015 Order). Basically, a party should not be able to rewrite judicial history because it no longer likes the outcome of a case.

Fortunately, the Court neither took the case nor vacated the earlier decision, and that is definitely a good thing for net neutrality advocates for two reasons. First, the Court’s denial eliminated one opportunity for opponents to chip away at the validity of the (former) rules or the Commission’s authority to create and enforce them. Second, the Court’s decision not to vacate the US Telecom decision means that opinion remains the most on-point legal precedent in the other net neutrality case, Mozilla v. FCC.

Early in 2018, CDT filed suit alongside a bevy of companies, public interest groups, and state attorneys general challenging the FCC’s inaptly-named Restoring Internet Freedom (RIF) Order, which eliminated all of the 2015 rules (except for the “transparency rule,” which it weakened). Since the Court agreed with us in US Telecom, being able to cite that decision in our arguments in Mozilla are a big plus. For instance, the US Telecom opinion includes passages dismissing arguments the current FCC used to justify its policy reversal. Those passages should be useful as we ask the D.C. Circuit to invalidate that reversal and strike down the RIF Order.

The Mozilla case will enter the final stages of briefing next week, with oral arguments scheduled for February 2019. We will follow up with a more detailed post about the Mozilla case soon, but until then, check out our past posts on the heart of the issue, the legal classification of internet access services, or brush up on your understanding of the fundamentals of the internet, the Web, net neutrality, and the regulatory debate through our “Techsplanations” series.

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