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Supreme Court tells Big Cable to shut up for once: Net neutrality challenge shot down

Even America's top court is bored of 'open internet' legal shenanigans

The US Supreme Court has refused to hear a challenge to the net neutrality rules that were introduced in 2015, and which have since been rescinded.

The decision [PDF] removes one piece of a jigsaw of legal cases working their way through the law courts that challenge both the 2015 rules – introduced during the Obama Administration under FCC chair Tom Wheeler - and the more recent 2018 rules – introduced during the Trump Administration by FCC chair Ajit Pai.

In this case, the decision goes against the Pai/Trump doctrine and bolsters the Wheeler/Obama version of net neutrality. But, like a recent Third Circuit decision that bolstered the Pai/Trump version, it remains just one factor in a larger fight over the rules that dictate internet access in the United States.

In this case, there were no less than seven petitions – each sent by a different arm of the cable industry - asking the Supreme Court to review a decision by the Washington DC Court of Appeals that said the Obama-era rules were legal.

The reason Big Cable persisted in that challenge – even after the rules were struck down by Pai's FCC – is because it fears the decision will act as a legal precedent against the new rules when yet another lawsuit is heard. In the world of net neutrality, there is no issue too small to be argued over.

Although the court turned the request down, it somewhat unusually provided additional detail.

"The petitions for writs of certiorari are denied," the official announcement said, but then added: "Justice Thomas, Justice Alito, and Justice Gorsuch would grant the petitions, vacate the judgment of the United States Court of Appeals for the District of Columbia Circuit, and remand to that court with instructions to dismiss the cases as moot."

The notice also noted that: "Chief Justice and Justice Kavanaugh took no part in the consideration or decision of these petitions."

Crystal ball

That's important because it give an indication of how the conservative side of the court will vote when the issue of net neutrality does eventually make its way to the country's highest court.

Beer enthusiast Kavanaugh was on the DC Court of Appeals that decided the case and back then he dissented and argued that the requirement to not block content violated ISPs' First Amendment rights – and so recused himself from the Supreme Court decision.

Stop sign in front of a bush. Image via Shutterstock

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Justice Roberts did the same but he has a significant share holding in Time Warner, which has since been acquired by AT&T and as such is one of the petitioners.

The decision not to hear the case means that the next net neutrality legal fight likely to appear before the Supreme Court will be the one brought by 22 state attorneys general against the FCC for scrapping the 2015 rules.

That case could throw out the new FCC rules and return everyone back to Obama-era rules. It seems unlikely but it's worth remembering that it was a successful legal challenge by Verizon in 2011 against the FCC's earlier earlier rules that kicked off the most recent fight.

The case that everyone is closely watching however is the federal government's challenge to California's state net neutrality rules. That one is likely to join the pantheon of states vs federal rights since the argument is basically that the internet is an interstate service and so federal rules should supersede state laws.

If all that hurts your brain, all you really need to know is that the current score in the net neutrality baseball game is 2-2 and we are in the fourth innings. ®

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