WASHINGTON — The Supreme Court declined to take up a challenge to a set of robust net neutrality rules put in place by the FCC in 2015, but this is by no means the end of the legal thicket over rules of the road for the internet.
A federal appeals court had upheld the rules, which prohibit internet providers from blocking or throttling content or selling off “fast lanes” of traffic so websites can get speedier access to consumers. In imposing the rules, the FCC reclassified internet service as a common carrier, a regulatory maneuver that was met with staunch opposition from major internet providers like Comcast, AT&T, and Verizon.
The FCC’s rules, though were largely repealed by the Trump era FCC in December. That action is also facing its own set of legal challenges in lawsuits filed by public interest groups and state attorneys general.
The Supreme Court’s decision to deny review was 4-3. The court said that Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have granted the petition, vacate the appeals court judgment and remand to that court “with instructions to dismiss the cases as moot.”
Chief Justice John Roberts and Justice Brett Kavanaugh did not take part in consideration of the petitions. It’s unclear why Roberts did not participate, but Kavanaugh wrote a dissent in the case last year, when he sat on the D.C. Circuit Court of Appeals.
FCC Commissioner Jessica Rosenworcel wrote on Twitter, “It wasn’t enough for this FCC to roll back net neutrality. It actually petitioned the Supreme Court to erase history and wipe out an earlier court decision upholding open internet politics. Today the Supreme Court refused to do so. Let’s call this interesting.”
Had the Supreme Court reviewed the case and overturned the 2015 net neutrality rules, it could have made it easier for the Republican-led FCC to defend its actions to repeal the regulations.
Matt Wood, policy director for the public interest group Free Press, said, “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.”
FCC Chairman Ajit Pai said, “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. Indeed, our brief in the pending D.C. Circuit litigation assumed that the prior decision would not be vacated.”