But don't vacate order; Kavanaugh does not participate

No big surprise, but the Supreme Court has declined to hear the appeal of the FCC's 2015 Open Internet order.

ISPs had sued the FCC over the rules against blocking, throttling and paid prioritization, adopted under former FCC chair Tom Wheeler over the objection of the Republican members of the commission, but the Supreme Court had held off making a decision on whether to grant cert--hear the appeal--until the current FCC decided what to do about the rules.

The FCC Republican majority under chairman Ajit Pai repealed the 2015 rules under a new Restoring Internet Freedom order, which itself has been challenged in court.

The Supreme court decision was 4-3 (4 votes were needed to take the case). Voting not to hear the appeal were Justices Kagan, Ginsburg, Breyer and Sotomayor. Justices Alito, Gorsuch and Thomas would have granted the petitions, but only to vacate the judgment, remand it back to the D.C. appeals court with instructions to dismiss it as moot. Chief Justice Roberts and Justice Kavanaugh, the latter which weighed in on the case as a member of the D.C. appeals court, recused themselves. 

“This decision is not surprising because the D.C. Circuit’s original decision was superseded by the FCC’s Restoring Internet Freedom Order (RIF) that correctly restored broadband as an information service," said Jonathan Spalter, president of USTelecom. "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.”

NCTA, the American Cable Association and others had also filed suit against the old rules, but weren't pursuing the appeal given that the Pai reversal essentially mooted it.

“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 Once the current FCC repealed the 2015 Order, almost all parties – including NCTA – agreed that the case was moot," NCTA said in a statement. "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.”

"Today, the Supreme Court decided to pass on rehearing a D.C. Circuit decision about an ill-designed FCC regulation that has since been replaced by the pro-market, pro-consumer Restoring Internet Freedom (RIF) order," said American Cable Association President Matt Polka. "The Supreme Court's decision was not unexpected. 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."

Denying the appeal, but also denying to vacate the old order is a victory of sorts for the groups challenging the deregulatory RIF.

If the 2015 order had been vacated it would have meant that that those challenging the Restoring Internet Freedom order would not have been able to use the previous D.C. court decision upholding that order as precedent.

John Bergmayer, senior counsel at Public Knowledge, certainly saw it that way.“This is good news for net neutrality supporters," he said. "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.”

“This is good news for net neutrality supporters," he said. "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.”

“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.) a big fan of that "settled" order. "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.”

It was likely the recusal of Roberts and Kavanaugh that kept the old order from being vacated. Certainly Kavanaugh was on the record as believing the 2015 Open Internet Order should be reversed.

“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, in a statement. “The Court [in Brand X]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.”

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