The Supreme Court today offered moral support for net neutrality activists and a soft setback for the current FCC’s agenda by declining to revisit a major case supportive of the 2015 rules. It essentially sets in stone the fundamental legality of those rules — not good PR for the agency that just rolled them back with questionable justification.
In a list of orders circulated today (PDF), the Court briefly noted the denial of a writ of certiorari, the official procedure by which a higher court requests the records of a lower court and after further argument passes its own judgment. Four Justices are required to vote yea in order for the case to be accepted — and that wasn’t the case here.
Why even try to have the Supreme Court hear a case that was decided long ago, about a rule that’s no longer in effect, rendering the decision moot? Because legal support for a strong net neutrality rule is kryptonite to the broadband industry.
Broadband and cable providers want to erase any evidence that the 2015 rules were ever acceptable at all. A coalition of these industries filed the petition to have the case reheard based on the idea that since the FCC had changed its mind on things, any decision resting on its previous determinations should be revisited — and, they hoped, eliminated.
Three Justices — Thomas, Alito, and Gorsuch — voted in favor of the petition, at least in that the D.C. court’s decision should be vacated and the cases mooted. That would essentially have meant removing the original net neutrality rule’s most high-profile legal buttressing, since that decision strongly supported the legality of the rule. It wouldn’t change anything on its own, but today’s FCC would sure like to be able to say that the rule they repealed was not supported by the courts. Unfortunately, it was, and it will remain so.
Newly minted Justice Kavanaugh did not participate in the process, likely because he had no opportunity to. But funnily enough, he already heard this case — on the D.C. circuit, where he issued a truly embarrassing decision that was soundly rebutted by Judge Srinivasan.
Today’s rejection by the Supreme Court solidifies the decision made by the D.C. judges and denies the FCC a tool in its ongoing campaign to discredit the 2015 rules. Commissioner Rosenworcel, however, who helped create and pass those rules, applauded the decision.