Supreme Court Justice Brett M. Kavanaugh took part in the net neutrality case as a judge in a lower court and recused himself from it now that he’s on the high court. (Andrew Harnik/Pool/AP) Brian Fung Policy reporter focusing on telecommunications, media, cryptocurrencies and competition November 5 at 10:44 AM The Supreme Court said Monday that it will not hear a closely watched case over the future of the Internet — rejecting a petition by telecom industry groups to consider net neutrality, the principle that Internet providers should treat all online content equally. Three of the justices — Clarence Thomas, Samuel Alito and Neil M. Gorsuch — would have voted to take up the case, according to the court’s announcement, and wipe off the books a lower court’s decision backing the Federal Communications Commission’s net neutrality rules, which were originally passed in 2015. But there were not enough justices for a majority, after Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh recused themselves. (Roberts’s financial disclosures for last year showed that he owned stock in Time Warner, a company now owned by AT&T under the name WarnerMedia, while Kavanaugh took part in the case as a judge in the lower court.) As a result, the decision by the U.S. Court of Appeals for the D.C. Circuit stands. That opinion, in 2016, held that the FCC had acted within its powers when it approved sweeping new rules the year before that imposed new obligations on Internet providers such as AT&T, Comcast and Verizon. The FCC rules forbade carriers from blocking or slowing websites, and also prohibited them from offering websites faster delivery to consumers in exchange for new, additional fees. Providers complained that the rules were overly burdensome and a violation of the FCC’s congressionally granted powers; consumer advocates said the rules were necessary as a vital consumer protection. The D.C. Circuit upheld the regulations, prompting industry groups to escalate the case to the Supreme Court. But even as the Supreme Court was weighing whether to take up the appeal, the FCC under Republican chairman Ajit Pai moved to rescind those very rules. The new FCC in 2017 voted to reject much of its authority over Internet providers, and handed much of the responsibility for net neutrality to a sister agency, the Federal Trade Commission. The repeal went into effect this summer. The GOP-led effort to repeal the FCC’s net neutrality rules set off a separate round of litigation, as tech companies and consumer groups sued to block the deregulation. That suit, which is also pending before the D.C. Circuit, is quickly becoming the center of the legal battle over net neutrality now, with the Supreme Court deciding not to hear its net neutrality case. The Justice Department has also agreed to suspend its recent suit against California over the state’s new net neutrality law, at least until the case before the D.C. Circuit is resolved. Internet providers who had petitioned the Supreme Court said they support an open Internet. “Rather than back-and-forth regulations and lengthy court proceedings, now is the time for Congress to enact bipartisan legislation and resolve this issue once and for all,” said CTIA, the wireless industry’s top trade association in Washington. Supporters of the now-defunct FCC rules say the Supreme Court’s decision not to hear the industry appeal bolsters their current litigation before the D.C. Circuit. Since the lower court had ruled in favor of the regulations, the opinion helps back up the case against the FCC repeal, according to John Bergmayer, senior counsel at Public Knowledge, a consumer advocacy organization. “This means that the previous decision is binding on the current FCC and on the D.C. Circuit panel that hears the current challenge,” Bergmayer said.
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The Supreme Court won’t take up net neutrality
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