Court Battles

Supreme Court refuses to take up challenge to Obama-era net neutrality rules

Stefani Reynolds

The Supreme Court on Monday put an end to a legal battle over the Obama administration’s net neutrality rules, refusing to hear an appeal of a lower court ruling that upheld the 2015 regulations.

The court declined to hear the appeal from the trade group USTelecom, which represents internet service providers, and Century Link Inc. without explanation.

The internet service providers (ISPs), along with the Trump administration, had asked the justices to toss out the ruling from the U.S. Court of Appeals for the District of Columbia Circuit.

They argued the Federal Communications Commission (FCC) lacked the congressional authority to impose public-utility, common-carrier obligations on broadband internet access service. The rules prohibited ISPs from blocking or throttling web content or from creating paid fast lanes.{mosads}

While the Supreme Court’s order is a win for net neutrality supporters, the fight over how internet access will be regulated is still far from over.

The FCC voted 3-2 along party lines last December to repeal the rules, a decision that is facing a separate challenge from net neutrality supporters before the D.C. Circuit. The repeal went into effect in June, and Monday’s order will have no immediate bearing on the current state of the rules.

But net neutrality supporters celebrated the win on Monday, noting that it leaves in place a high court ruling that the FCC has the authority to regulate broadband like a public utility.

In addition to implementing the net neutrality rules, the FCC had also used that authority to impose strict data privacy rules on internet providers, though those regulations were later overturned by Congress.

“We’re grateful that a majority of the justices saw through the flimsy arguments made by AT&T and Comcast lobbyists,” Matt Wood, the policy director at Free Press, said in a statement. “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,” Wood added.

But Republicans and industry groups behind the repeal of the net neutrality rules downplayed Monday’s order.

A spokesperson for Ajit Pai, the current Republican FCC chair who pushed through the Restoring Internet Freedom order that wiped away net neutrality, said that the agency is still confident that the repeal order will be upheld as well.

“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,” the spokesperson said in an emailed statement.

“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,” Jonathan Spalter, the CEO of USTelecom, said in a statement.

“[The Restoring Internet Freedom order] remains the law of the land and is essential to an open internet that protects consumers and advances innovation,” he added.

In a brief note, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, from the court’s conservative wing, said they would have granted the petition, vacated the judgment of the lower court and remanded the case back down to the court to dismiss it as moot.

But those justices’ efforts to wipe away the ruling were thwarted by their fellow conservative colleagues who chose to abstain from the vote. Recusing themselves from the vote were Justice Brett Kavanaugh, who heard the case while on the D.C. Circuit, and Chief Justice John Roberts. According to Roberts’s 2017 financial disclosure form, he owned stock in Time Warner, which is now a subsidiary of AT&T, a company that is a member of USTelecom.

The net neutrality issue is far from settled, however.

States upset over the repeal of the federal rules have implemented their own laws and regulations that require internet service providers to operate by open internet principles. That has prompted separate legal challenges from the industry and the Trump administration.

For their part, broadband providers are hopeful that Congress will step in and come up with a legislative replacement, but net neutrality supporters, angry over the FCC repeal, believe the efforts to come up with a bill are being done in bad faith. They fear that any legislative compromise on net neutrality will be too weak and watered down.

Proponents of the rules are waiting for D.C. Circuit to decide the fate of the FCC’s repeal order, and that court fight may very well land in the Supreme Court’s lap. The appeals court will hear oral arguments in February.

Updated at 3:55 p.m.

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